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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  MANUAL 


or 


ELEMENTARY  LAW 


BEING    A    SUMMARY    OF 


THE  FUNDAMENTAL  PRINCIPLES  OF 
AMERICAN  LAW 


BY 

WILLIAM  P.  FISHBACK 

LATE    DEAN    OF    THE    INDIANA    LAW    SCHOOL 


REVISED  BY 

ARNOLD   BENNETT   HALL 

OF    THE    FACULTY    OF    THE    UNIVERSITY    OF    WISCONSIN 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBLISHERS 


Copyright  189f» 

BY 

THE  EOWEN-MERRILL  COMPANT? 


Copyright  1915 

BT 

THE  BOBBS-MERRILL  COMPANY 


T 

1915 


ft 


PREFACE  TO  REVISED  EDITION 


This  revision  of  the  "Manual  of  Elementary  Law" 
is  the  product  of  several  years  use  of  the  book  by  the 
editor  as  a  text  for  classroom  instruction.  Its  object 
is  to  bring  the  original  edition  down  to  date  and  make 
it  harmonize  with  modern  tendencies  in  legal  develop- 
ment. It  seeks  to  give  a  bird's-eye  view  of  the  law, 
classified  and  organized  along  lines  followed  in  modern 
law  schools  and  in  legal  literature. 

The  editor  has  proceeded  on  the  theory  that  such  a 
volume  would  be  of  servfce  to  two  classes  of  students 
and  readers.  The  first  class  are  pre-legal  students. 
Some  place  before  the  student  enters  upon  the  spe- 
cialized study  of  the  law,  he  needs  to  be  informed  as 
to  the  meaning  of  the  terms  which  he  must  needs  em- 
ploy from  the  moment  he  studies  his  first  assignment, 
the  general  classification  of  the  subject-matter,  and  its 
place  in  the  social  order.  The  purpose  of  such  a  vol- 
ume is  not  to  impart  a  legal  education  or  to  duplicate 
certain  portions  of  professional  study,  but  to  bring  to 
the  student  an  appreciation  of  the  nature,  character 
and  fundamental  conceptions  of  the  law,  and  to  vitalize 
its  study  by  showing  its  fundamental  relation  to  the 
processes  of  social  evolution  as  well  as  to  the  prac- 
tical affairs  of  everyday  life. 

The  second  theory  followed  in  the  revision  of  the 
volume  is  that  it  would  be  valuable  to  that  much 
larger  class  of  students  interested  in  some  phase  of  the 
social  sciences.  No  scheme  of  education  in  these  sub- 
jects   would    seem    complete    unless    it    involved    some 

v 

675995 

LAW 


VI 


PREFACE 


knowledge  of  the  legal  system,  its  nature,  its  content 
and  its  sources.  For  the  law  is  the  instrumentality 
through  which  social  control  may  be  established  and 
social,  economic  and  political  reforms  achieved. 

In  the  preparation  of  the  new  material  that  has  been 
added  there  is  no  claim  to  originality.  All  available 
material  has  been  consulted  and  under  such  circum- 
stances it  is  impossible  to  give  credit  where  credit  is 
really  due.  Because  of  the  uniform  satisfaction  which 
the  author's  style  of  exposition  has  given,  the  phrase- 
ology has  not  been  changed  or  sections  rewritten  ex- 
cept where  necessary.  The  editor  wishes  gratefully 
to  acknowledge  many  helpful  suggestions  and  criti- 
cisms from  his  colleagues  in  the  Department  of  Po- 
litical Science  and  in  the  Law  School  of  the  University 

of  Wisconsin. 

Arnold  Bennett  Hall. 

Madison,  Wisconshi,  July  2,  191$. 


PREFACE  TO  FIRST  EDITION 


In  this  manual  an  effort  has  been  made  to  put  the 
reader  in  possession  of  a  summary  of  the  well-settled 
elementary  principles  of  the  law,  by  stating  them  dog- 
matically in  language  as  simple  as  the  subject  admits 
of.  After  all  that  is  said  derisively  about  the  glorious 
uncertainty  of  the  law,  there  are  many  rules  of  civil 
action  regulating  the  political,  business  and  domestic 
relations  of  life  which  may  be  said  to  be  settled.  It 
has  been  the  effort  in  these  pages  to  collect  these  rules 
from  authoritative  sources  and  print  them  in  a  form 
at  once  comprehensive  and  compact.  What  may  be 
objected  to  as  a  defect  I  count  one  of  the  chief  merits 
of  the  book,  viz.,  the  absence  of  notes  and  citations. 
There  is  no  claim  to  originality  except  in  the  matter 
of  the  method  of  stating  and  arranging  the  materials 
which  have  been  accumulated  by  the  labors  of  others. 
The  fruit  of  these  labors  has  been  appropriated  with 
freedom  and  without  compunction,  and  it  is  my  belief 
that  no  rule  of  law  is  stated  which  is  not  supported  by 
adequate  authority.  It  would  have  been  an  easy  mat- 
ter to  swell  the  size  of  the  volume  bv  a  collection  of 
foot-notes  and  a  list  of  decided  cases;  but  for  the  be- 
ginner I  believe  that  such  citations  tend  to  confuse, 
rather  than  to  instruct.  Of  course,  this  does  not  apply 
to  advanced  students,  or  to  those  who  are  pursuing  a 
post-graduate  or  university  course  of  technical  profes- 
sional instruction,  but  it  is  relevant  to  the  vast  ma- 
jority of  beginners  who  are  to  make  up  the  bulk  of 
the  legal  profession. 

vii 


viii  PREFACE 

The  book  may  have  its  use  in  other  fields.  The 
general  reader  may  find  here  in  outline  a  statement 
of  the  sources  and  foundations  of  the  laws  under 
which  we  live,  as  well  as  many  rules  and  principles 
of  business  which  may  serve  to  admonish  and  guide 
him  in  the  performance  of  the  duties  of  citizenship. 
Some  knowledge  of  these  should  form  a  part  of  the 
education  of  every  citizen,  and  a  familiar  acquaintance 
with  them  will  create  in  the  minds  of  all  a  higher 
sense  of  the  dignity  and  usefulness  of  the  legal  pro- 
fession, and  a  better  appreciation  of  the  value  of  up- 
holding a  system  of  jurisprudence,  the  maintenance  of 
which  is  essential  to  the  progress  if  not  to  the  preser- 
vation of  society.  W.  P.  F. 

January,  1896. 


TABLE  OF  CONTENTS 


PART  I. 

NATURE  AND  SOURCES  OF  THE  LAW. 

CHAPTER  I. 
DEFINITION   AND    NATURE    OF    THE    LAW. 

Section.  Page. 

1.  Definition  of  law  in  general 1 

2.  Law  in  the  abstract  sense 3 

3.  Legal  rights  and  duties 5 

4.  Liberties    5 

5.  Powers    6 

6.  Moral   rights  and   duties 7 

7.  Scope  of  legal   right 7 

8     The  right  of  personal  security 8 

9,     The  right  to  life 8 

10.  The  right  of  personal  liberty 9 

11.  Habeas   corpus 9 

12.  Right   to   health 10 

13.  Right  to   reputation 10 

14.  Right  to  property 11 

15.  The  administration   of  justice 12 

CHAPTER   II. 
•  KINDS    AND    SOURCES    OF    LAW    IN    THE    UNITED    STATES. 

16.  Written  and  unwritten  laws 15 

17.  Kinds  of  written  law  in  the  United  States 15 

18.  The  unwritten   or  common  law 16 

19.  Historical  and  legal  sources  of  the  law 17 

20.  Historical  sources   of  the  common   law 18 

21.  Growth   of  the  common  law 18 

22.  Common  law  in  the  United  States 19 

CHAPTER   III. 

STATUTES. 

23.  Statutes  as  legaJ  sources 21 

24.  Constitutions    21 

ix 


X  TABLIC    OF    CONTENTS 

Section.  Page. 

25.  Validity  of  statutes 22 

26.  Retroactive    statutes 23 

27.  Public  and  private  statutes 24 

28.  Interpretation  of  statutes 24 

29.  Statutes  the  most  important  of  all  legal  sources 26 

CHAPTER  IV. 
CUSTOM    AND    PRECEDENT. 

30.  Origin  and  nature  of  general  customs 29 

31.  General  customs  as   legal   sources  of  the  law 30 

32.  Decreasing  importance  of  custom  as  a  legal  source 31 

33.  Particular  customs 31 

34.  Judicial  precedent  as  a  legal  source  of  law 32 

35.  Declaratory  and  original  precedents 32 

36.  Importance  of  precedents 33 

CHAPTER  V. 
SOCIAL   UTILITY   OF   THE   LAW. 

37.  Some   basis    of    regulating   conduct   necessary   in   modern 

society   34 

38.  The  basis   of  regulating   conduct  to   be   one  that   is   gen- 

eral and  equal  in  application 35 

39.  The   state's   basis   of   regulating   conduct  to   be   one   that 

guarantees  certainty  and  uniformity 36 

40.  Courts  of  Justice  versus  courts  of  law 38 

41.  Certainty  frequently  more  Important  than  justice 40 

42.  Scientific  character  of  the  law 40 

43.  Law  a  protection  against  error  and  corruption 41 

44.  The  defects  of  the  law 43 

PART  II. 

THE  LAW  OF  TORTS. 

CHAPTER    VI. 
TORTS    IN    GENERAL. 

45.  Classification  of  the  law 45 

46.  Definition  of  a  tort 46 

47.  Torts  distinguished  from  crimes 44 

48.  Torts  distinguished  from  breaches  of  contract 47 

4?.    Theory  of  the  law  of  torts 47 


TABLE    OF    CONTENTS  XI 

CHAPTER    VII. 
SECURITY    OF    THE    PERSON. 

Section.  Page. 

50.  The   right  to  life 49 

51.  When  life  may  be  lawfully  taken 49 

52.  Remedies   50 

53.  Recovery  for  injuries  causing  death 50 

CHAPTER  VIII. 
ASSAULT    AND   BATTERY. 

54.  Assault  and  battery  in  general 52 

55.  The  ability  and  intent  to  injure 52 

56.  Battery  defined 53 

57.  The  intent  of  the  wrongdoer 53 

58.  Consent   of  the    one   injured 53 

59.  Justification  for  battery 53 

60.  Self-defense    54 

61.  The  remedies 55 

CHAPTER  IX. 
FALSE    IMPRISONMENT. 

62.  Definition    56 

63.  The  detention  or  restraint 56 

64.  The  unlawfulness  of  the  restraint 57 

65.  Lawful  restraint  without  legal  process 57 

66.  Lawful  restraint  uBder  legal  process 58 

67.  Officers 59 

68.  Remedy   60 

69.  Privilege  from  arrest 60 

70.  Remedy  for  arrest  of  privileged  persons.. 61 

CHAPTER  X. 

MALICIOUS   PROSECUTION. 

71.  Elements  of  the  wrong 62 

72.  The  malicious  motive 63 

73.  Want  of  probable   cause 63 

74.  Proceedings  must  have   terminated 65 

75.  Malicious  prosecution   of   civil   actions 05 

76.  Malicious  abuse  of  process 66 

77.  Remedy    €6 


xii  TABLE    OF    CONTENTS 

CHAPTER  XI. 

DEFAMATION. 
Section.  Page. 

78.  Definition  of  defamation 68 

79.  The  right  to  reputation 68 

SO.  Libel    and    slander 69 

81.  Slander    TO 

82.  Slander  imputing  crime 70 

83.  Slander   imputing   disease 71 

84.  Slander  affecting  one  in  his  office,  profession  or  trade...  71 

85.  Slanders  actionable  only  by  reason  of  special  damages...  72 

86.  Libel    T2 

87.  Definition    ''2 

88.  Newspapers    73 

89.  Publication   73 

90.  Construction    T-l 

91.  Certainty  76 

92.  Malice  76 

93.  Justification    78 

94.  Privilege   79 

95.  Absolute   privilege 80 

96.  Legislative    proceedings 80 

97.  Judicial   proceedings 80 

98.  Naval  and  military  matters 81 

99.  Qualified  privilege 82 

100.  Matters  of  public  interest  and  concern 82 

101.  Communications  made  under  duty 84 

102.  Communications   in   self-defense 85 

103.  The    remedy • 85 

104.  The  damages 85 

CHAPTER  XII. 

FRAUD   AND   DECEIT. 

105.  Kinds    of    fraud 88 

106.  Frauds  in  confidential  relations 89 

107.  Parties  having  illegal  sexual   relations 89 

108.  Trustees   S9 

109.  Attorneys,  physicians  and  clergymen 90 

110.  Persons  of  weak  mind 91 

111.  Fraud   and  deception   between   equals 92 

112.  Definition    93 

113.  Fraud   by  silence    93 

114.  Equal  opportunities  for  knowledge 94 


TABI^E    OF    CONTENTS  XUl 

Sectiox.  Page. 

115.  Elements   of   fraud -94 

116.  Representations    95 

117.  Clearness  and  certainty 95 

113.  ^  Matter  of  law 96 

119.  '  Matter  of  opinion 96 

120.  Matters    of   fact 97 

121.  Fraudulent   promises 97 

122.  Materiality   97 

123.  Falsity   98 

124.  Wrongdoer's  knowledge 98 

125.  Wrongdoer's  intent  that  the  representation  be  acted  on..     98 

126.  Who  entitled  to   rely   on   representations 99 

127.  Representation  must  have  been  acted  on 99 

128.  Injured   party's   belief 100 

129.  Damage   100 

130.  The    remedies 100 

131.  Personal   injuries  through   fraud 101 

CHAPTER   XIII. 
NUISANCE. 

132.  How   related  to   negligence 102 

133.  Nuisance  defined 103 

134.  "Coming  to  a  nuisance" 105 

135.  The  intent  or  motive  immaterial 106 

136.  Care  or  negligence  in  nuisance 106 

137.  W^hat  may  be  nuisances 107 

138.  Kinds   of   nuisances 108 

139.  Public   nuisance 109 

140.  Private   nuisance 109 

141.  Nuisances,  both  public  and  private 109 

142.  Authorized    nuisances 110 

143.  Obstruction  of  highways 110 

144.  What  is  a  highVay Ill 

145.  Purprestures    HI 

146.  What  is   an   obstruction 112 

147.  Duration  of  the  obstruction 112 

148.  Objects   near  the  highway 112 

149.  Authorized    obstructions 113 

150.  The  special   injury 113 

151.  Remedies   for   nuisance 114 

152.  Evidence   of  nuisance 115 


XIV  TABLE    OF    CONTENTS 

CHAPTER  XIV. 

negligence. 

Section.  Page. 

153.  Actionable  negligence 116 

154.  Contract   or  tort 116 

155.  Elements  of  actionable  negligence 117 

15G.    Definition  of  negligence 117 

157.     The  inadvertence 117 

25S.     Inevitable    accident 118 

159.  Ordinary  care  under  the  circumstances 118 

160.  No   degrees   in   negligence 119 

161.  Acts   or   omissions 119 

162.  Legally   responsible  person 120 

163.  Intoxication    120 

164.  Physical  infirmity 121 

165.  The  person  to  whom  the  duty  is  owing 121 

166.  The  duty 121 

1G7.     The  duty  implied  by  law 122 

168.  The  damage 122 

169.  Cause  and  effect 122 

170.  The    legal    connection 123 

171.  Definition  of  proximate  cause 123 

172.  Plaintiff's  own  conduct 123 

173.  Plaintiff's   unlawful    act 124 

174.  Contributory  negligence 125 

175.  Tests   of   contributory   negligence 125 

176.  Plaintiff's  knowledge  of  danger 126 

177.  Danger  incurred  to  save  life  or  in  discharge  of  duty 126 

178.  Persons   of  defective  powers 127 

179.  Misleading  conduct 127 

180.  Imputable  negligence 127 

181.  Passenger   and    carrier — Imputed    negligence 128 

182.  Children — Imputed  negligence 128 

183.  Presumptions  as  to  negligence 129 

CHAPTER  XV. 
WRONGS  TO  INCORPOREAL  PROPERTY. 

184.  Incorporeal  hereditaments 130 

185.  Other  incorporeal   rights 130 

186.  Statutory    provisions 131 

187.  Patents    131 

188.  Copyrights    132 

189.  Literary   property 132 


TABLE   OF   CONTENTS  XV 

Section.  Page. 

190.  Private    letters 132 

191.  Trade-marks  and  trade-names 133 

CHAPTER  XVI. 
WRONGS  TO  PERSONAL  PROPERTY. 

192.  Kinds   of  injuries 135 

193.  Trespass  by  force 135 

194.  Possession    135 

195.  The   force 136 

196.  Conversion    136 

197.  Conversion  by  persons  rightfully  in  possession 137 

198.  Demand  for  possession 138 

199.  Conversion  by  tenant  in  common 138 

200.  Legal   process 138 

20L    Remedies   139 

CHAPTER  XVn. 
WRONGS  TO  REAL  PROPERTY. 

202.  Ownership    141 

203.  Dispossession    141 

204.  Unlawful  detention 142 

205.  Remedies    142 

206.  Injuries   to   land   without   dispossession 143 

207.  Waste    143 

208.  Kinds   of   waste 144 

209.  Remedies   144 

210.  Nuisance  affecting  land 144 

211.  Remedies    144 

212.  Trespass  upon  land 145 

213.  The  boundary  line 145 

214.  Who  may  be  a  trespasser 146 

215.  Lawful  authority 146 

216.  License  impliedly  given  by  the  owner 146 

217.  Express  license  by  the   owner 147 

218.  Effect   of  statute  of  frauds 147 

219.  License   by   law 148 

220.  Legal    process 148 

221.  Condemnation   proceedings 148 

222.  Effect  of  exceeding  the  license 149 


XVI  TABLE    OF    CONTENTS 

CHAPTER  XVIII. 

WRONGS   DONE  BY   ANIMALS. 
Section.  Pack. 

223.  Injuries  by  animals loU 

224.  Trespass  upon   land   by   animals 150 

225.  Duty  of  owner  at  common  law 150 

226.  The  law   in  the  United   States 151 

227.  Remedies    151 

22S.     Animals  not  trespassing 151 

229.  Owner's  knowledge  of  danger 152 

CHAPTER  XIX. 
INTERFERENCE    WITH    DOMESTIC    AND    BUSINESS    RELATIONS. 

230.  Introductory    153 

231.  Enticing  of  servant  and  seduction  of  servant  or  daughter,  154 

232.  Interference    with    marital    duties 154 

233.  Interference  with  contractual  duties 154 

234.  Interference   with   business   relations   by   force    or   threats 

of  force 155 

235.  Intentional    injury    to    business    relations    constitutes    a 

prima   facie   tort 155 

236.  Justification  for  prima  facie  torts 156 

237.  Boycotting  noncorapetitors 157 

238.  Combinations   and   conspiracies   in   competition 158 

239.  General  strikes  to  secure  better  terms  from   employer...  158 

240.  The  remedy 159 


PART  III. 
CRIMINAL  LAW. 

CHAPTER  XX. 
CRIMINAL    LAW. 

241.  Criminal  law  in  general 160 

242.  Crimes  in  the  United  States 161 

243.  Capacity  to  commit  crime 161 

244.  Criminal  statutes,  how  construed 162 

245.  Infamous   crimes 162 

246.  Crimes   classified 162 

247.  Compounding    162 

248.  Attempts   163 

249.  Aiding,    counseling,    etc 163 


TAIJL.E    OF    CONTENTS  XVU 

Skction.  Page. 

250.  Unlawful  intent  and  overt  act  must  unite 163 

251.  Criminal    carelessness 164 

252.  Ignorance  or  mistake  of  fact 164 

253.  Ignorance    of   law 164 

254.  Self-defense    1^^ 

256.  Offenses   committed   by   wife 165 

256.  Where  principal  liable  criminally  for  offense  of  agent...  165 

257.  Principal   and   accessories 16-j 

258.  Drunkenness    1^^ 

259.  Insanity    l^^ 

260.  Punishment    1^^ 

261.  Jurisdiction  of  crimes 167 

262.  Territorial   jurisdiction   of  crimes 167 

CHAPTER  XXI. 
CRIMINAL   OFFENSES. 

263.  Criminal  offenses  in  general 169 

264.  Abortion    170 

265.  Adultery    I'^O 

266.  Fornication    I'^O 

267.  Incest   I'^O 

268.  Rape   I'^O 

269.  Seduction    1"^! 

270.  Abduction   and   kidnaping 171 

271.  Bestiality— Sodomy    l^'Z 

272.  Affray   172 

273.  Arson   173 

274.  Assault   173 

275.  Assault  and  battery 173 

276.  Assault  with  intent ". 174 

277.  Justification  for  assault 174 

278.  False  imprisonment 174 

279.  Barratry,  champerty  and  maintenance 175 

280.  Bigamy   or    polygamy 176 

281.  Bribery    176 

282.  Burglary    176 

283.  Robbery    171 

284.  Embezzlement    178 

285.  Larceny   179 

286.  Cheating — False    pretenses 179 

287.  Conspiracy    * 180 

288.  The  agreement 180 

289.  Dueling  181 


XVIU  TABLE    OF    CONTICNTS 

Section.  Page 

290.  Extortion  ISl 

291.  Forgery  181 

292.  Homicide   1S2 

293.  Voluntary  manslaughter 182 

294.  Involuntary   manslaughter 183 

295.  Justifiable  homicide 183 

296.  Malice   184 

297.  Libel    184 

298.  Malicious  trespass  or  malicious  mischief 185 

299.  Mayhem    185 

300.  Nuisance   185 

301.  Perjury    186 

302.  Piracy   186 

303.  Riot    187 

304.  Treason  and  misprision  of  treason 187 


PART  IV. 

THE  LAW  OF  PROPERTY. 

CHAPTER  XXn. 
PROPERTY    IN    GENERAL. 

305.  The  law  of  property 189 

306.  Basis   of   ownership 190 

307.  Origin  or  private  ownership 191 

308.  Its    importance 191 

309.  Kinds  of  property 192 

CHAPTER  XXIII. 
REAL   PROPERTY. 

310.  Real    property 194 

31L    Titles  in  the  United  States 194 

312.  Land   acquired   by   treaty 195 

313.  Indian   titles 195 

314.  Definitions    196 

315.  Lands  bounded  by  streams 197 

316.  Islands     198 

317.  Fixtures    199 

318.  Boundaries    ; 200 

319.  Land  bounded  by  highways 201 

320.  Appurtenances    201 


TABLE    OF    CONTENTS  XIX 

CHAPTER  XXIV. 
.     INCORPOREAL  PROPERTY. 

Section.  Page. 

32L     Kinds   of   incorporeal    property 203 

322.  Advowsons  203 

323.  Tithes     204 

324.  The   right   of   common 204 

325.  Right  of  way 205 

326.  Private   rights   of  way 207 

327.  Temporary  rights  of  way 207 

328.  Easements    208 

329.  Offices   and   dignities 209 

330.  Franchises    209 

331.  Rents    210 

332.  Liens    210 

CHAPTER   XXV. 
THE  FEUDAL  SYSTEM. 

333.  Its    origin    and    nature 212 

334.  Allodial    estates 213 

335.  Wardship    and   marriage 214 

336.  Local    courts 215 

337.  Homage   and   fealty 215 

338.  Military    service 216 

339.  Other   obligations   of  the  tenant 216 

340.  Domesday     Book , 217 

341.  Escuage    217 

342.  Changes  in   feudal   system 217 

343.  Abolition   of  the  system 218 

CHAPTER  XXVI. 

ANCIENT    TENURES. 

344.  Tenure    220 

345.  Property  holden   of  superior 220 

346.  Lord    paramount 220 

347.  Middle   lords   and   tenant   paravaile 220 

348.  Free   and   base   tenure 221 

349.  Frank-tenement  and  villenage 221 

350.  Knight  service 221 

351.  Aids    222 

352.  Relief   222 

353.  Primer    seizin 222 

354.  Wardship    222 


XX  TABLE    OF    CONTENTS 

Section.  Page. 

355.  Marriage    222 

356.  Fines    222 

357.  Escheat   222 

CHAPTER   XXVII. 
MODERN   ESTATES. 

35S.     Influence  of  feudal  system 223 

359.  Early   grants   affected 224 

360.  Revival   of  allodial   tenure 224 

361.  Sovereignty  as   source   of  title 225 

362.  Estates     225 

363.  Fee    simple 225 

364.  Fee    simple   in    abeyance 225 

365.  Use  of  word  "heirs" 226 

366.  Estates   for   life 227 

367.  Rights  of  life  tenant 227 

368.  Emblements    228 

369.  Taxes    and    interest 228 

370.  Waste    228 

371.  Estates  for  years 228 

372.  Rent  229 

373.  Duration   of  tenancy 230 

374.  Distress 231 

375.  Apportionment    of    rent 232 

376.  Estates  at  will ^ 232 

377.  Estates    at    sufferance 232 

378.  Base    fee 232 

379.  Conditional    fee 233 

380.  Estates  tail  and  statute  de  donis 233 

381.  Tenant  by  the  curtesy 234 

382.  Dower    235 

383.  Assignment  of  dower 235 

384.  Estates   upon    condition 236 

385.  Estates  upon  condition  implied 236 

386.  Estates   upon    condition    expressed 236 

387.  Conditions  precedent  and  subsequent 236 

388.  Estates   in    remainder 238 

389.  Rule  in  Shelley's  Case 239 

390.  Executory    devises 239 

391.  Estates  in   reversion 240 

392.  Estates  in  severalty 240 

393.  Joint  tenancy 240 

394.  Tenancy  in   common 241 


TABLK    OF    CONTENTS  XXI 

CHAPTER  XXVIII. 
TITLE   TO    REAL   PROPERTY,    HOW    ACQUIRED. 

Section.  Page. 

395.  Ways    of   acquiring    title 242 

396.  Title    by    occupancy 242 

397.  Adverse    possession 243 

398.  Occupying   claimant 244 

399.  Title    by    marriage 244 

400.  Title   by   descent 244 

401.  Title   by   devise 24.5 

402.  Wills    246 

403.  Capacity  to  make  wills— Written   wills 246 

404.  Revocation  of  wills 247 

405.  Title    by    purchase 248 

406.  Title    bond 249 

407.  Deeds  by  owners  not  in  possession 249 

408.  Forms  of  deeds 249 

409.  Registration  of  deeds 250 

410.  Parties   to   deeds 250 

411.  Deeds  by  officers 250 

412.  Description    of    land    conveyed 251 

413.  Title  by  eminent  domain 251 

414.  Title  by   escheat 253 

415.  Title  by  forfeiture 253 

CHAPTER   XXIX. 
PERSONAL   PROPERTY. 

416.  Definition    255 

417.  Title  to— How  acquired 255 

418.  Burial    rights 256 

CHAPTER  XXX. 

DECEDENTS'    ESTATES. 

419.  Testator  and   intestate 257 

420.  Statutes    of   descent   and    distribution 257 

421.  Administrator    257 

422.  Executor    258 


xxu  table;  of  contents 

PART  V. 

THE  LAW  OF  CONTRACTS. 

CHAPTER  XXXI. 
DEFINITION,    CLASSIFICATION    AND    VALIDITY    OF    CONTRACTS. 

Section.  Page. 

423.  The  law  of  contracts 260 

424.  Growth  of  right  to  contract 261 

425.  Contract    defined 262 

426.  Contracts   are   executory   or   executed 263 

427.  Written  contracts 263 

428.  Parol    contracts 264 

429.  Express    contracts 264 

430.  Implied    contracts 264 

431.  Quasi    contracts 265 

432.  Contracts  of  record 265 

433.  Offer    and    acceptance 265 

434.  Time  and   place   of  contract 266 

435.  Legality  of  object  of  contract 267 

436.  Reality   of  consent— Mistake 268 

437.  Reality  of  consent — Fraud  and  misrepresentation 268 

438.  Reality  of  consent — Duress  and  undue  influence 269 

439.  Void  and  voidable  contracts 270 

440.  Interpretation  of  contracts 271 

CHAPTER  XXXII. 
CAPACITY    OF   PARTIES    TO    CONTRACT. 

441.  Capacity   of  parties 272 

442.  Who  may  make  valid  contracts 272 

443.  Infants    273 

444.  Infant's  contracts  for  necessaries 274 

445.  Ratification  and  disaffirmance  by  infants 274 

446.  Fraud   of   infants 275 

447.  Insane    persons 275 

448.  Drunkenness     276 

449.  Married   women 276 

CHAPTER  XXXIII. 
CONSIDERATION,    DISCHARGE    AND    REMEDIES. 

450.  Definition    278 

451.  Adequacy  of  consideration 279 


TABLE    OF    CONTENTS  XXIU 

Section.  Page. 

452.  Prior  obligation  as  consideration 280 

453.  Promise   to   release   debtor 280 

454.  Disputed  claims 280 

455.  Impossible  and  illegal  consideration 281 

456.  Executed   and   executory   considerations 281 

457.  Past    consideration 281 

458.  Failure   and   want  of   consideration 282 

459.  Discharge   of   contracts 283 

460.  Remedies  for  breach   of  contract 284 

CHAPTER  XXXIV. 
STATUTE    OF    FRAUDS. 

461.  History  of  the  statute * 285 

462.  Provisions   of  the  statute 286 

463.  Promises  of  executors  and  administrators 286 

464.  Debt,  default  and  miscarriage 287 

465.  Original    or    collateral    obligation 287 

466.  Agreements   in   consideration    of   marriage 288 

467.  Contracts  for  sale  of  lands 288 

468.  Agreements  not  to  be  performed  within  a  year 289 

469.  The  note  or  memorandum 289 

470.  Signature    to    memorandum 290 

CHAPTER  XXXV. 
NEGOTIABLE    INSTRUMENTS. 

471.  Definitions    291 

472.  The    Negotiable    Instruments    Law 292 

473.  Origin   of   law   merchant 292 

474.  Foreign    and    inland    bills 293 

475.  Parties   to   a  bill   of  exchange 293 

476.  Indorsement    293 

477.  Duty   of  the   holder 294 

478.  Special   indorsements 294 

479.  Signatures  and  date 295 

480.  Certainty    295 

481.  Surety,  guarantor,  indorser  and  assignor 295 

482.  Law  of  the  place 296 

483.  Agents    297 

484.  Capacity   of  parties 297 

485.  Consideration    297 

486.  Purchase  for  value  without  notice 298 

487.  Bills  of  lading  and  checks 298 


XXIV  TABLE   OF   CONTENTS 

CHAPTER  XXXVI. 
CONTRACTS    OF    INSURANCE, 

Section.  Page. 

48S.     Definition    300 

4S9.     Contract,   how   made 300 

490.  How    interpreted 301 

491.  Warranty   and   representation 301 

492.  Payment   of   premiums 302 

493.  Waiver  of  payment 302 

494.  Insurable   interest 303 

495.  Increase    of   risk 303 

CHAPTER  XXXVII. 
SALES    AND    OTHER    PARTICULAR    CONTRACTS. 

496.  Contracts   of   sale   and   exchange 304 

497.  Warranties    304 

498.  Transfer    of    title 306 

499.  Sale   of  goods,   wares   and   merchandise 307 

500.  Delivery    308 

501.  Contracts    of    bailment 309 

502.  Contracts  of  common  carriers 310 


PART  VI. 

PARTNERSHIP  AND  CORPORATIONS. 

CHAPTER  XXXVIII. 
PARTNERSHIP. 

503.  Definition    312 

504.  Authority  and  liability  of  partners 312 

505.  Formation  of  partnership 313 

506.  Rights  of  partners 314 

507.  Deeds    of   partners 314 

508.  Dissolution   of  partnership 314 

509.  Individual    and    partnership    creditors 315 

510.  Rights  of  partners  after  dissolution 316 

511.  Limited     partnership 316 

512.  Good   will 317 


TABLE    OF    CONTENTS  XXV 

CHAPTER  XXXIX. 
CORPORATIONS. 

Section.  Page. 

.513.  Definition    318 

514.  Nature  of  corporations 313 

515.  Powers   of  corporations 320 

516.  Organization  of  corporations 320 

517.  The  charter 321 

518.  Contracts  of  corporations 322 

519.  Rights    of    stockholders 323 

520.  Dissolution    323 

521.  Vested    rights 323 

522.  Deeds    of    corporations 324 

523.  Fraud  by  officers  of  the  corporation 324 

524.  Public   service   cornorations 325 


PART  VII. 

THE  LAW  OF  PRINCIPAL  AND  AGENT  AND  OF 
MASTER  AND  SERVANT. 

CHAPTER   XL. 
PRINCIPAL    AND    AGENT. 

525.  Principal  and  agent  and  master  and  servant  in  general,  327 

526.  Agency  in  general 328 

527.  Authority   of  agents   in   special   calling 329 

528.  When  principal  is  bound  by  act  of  his  agent 330 

529.  Undisclosed    principal 331 

530.  Duties  between   principals  and   agents 331 

531.  Termination    of   agency 332 

532.  Powers   of  attorney 333 

CHAPTER   XLI. 
MASTER    AND    SERVANT. 

533.  Growth   of  the  relation 334 

534.  Apprentices    335 

535.  Who   is  a  master  or   servant 335 

536.  Independent    contractor 336 

537.  The  contract  between  master  and  servant 336 

538.  Termination  of  the  relation 337 

539.  Discharge  by  the  master 337 


XXvi  TABLE   OF   CONTENTS 

Section.  Page. 

540.  Abandonment   by   the    servant 337 

541.  Wrongs  independent  of  contract 338 

542.  Liability  of  third  persons  to  the  master 338 

543.  Liability   of  third   persons  to  the   servant 339 

544.  Master's  liability  for  injury  to  others 339 

545.  Intentional    and    unintentional    injuries 339 

546.  Servant's   liability   for   injuries   to   others 340 

547.  Master's  liability  to  the  servant 340 

548.  Duties  of  master  to  servant 340 

549.  Risks  assumed  by  servant 341 

550.  Fellow  servants 341 

551.  Vice    principal 341 

552.  Servant's  liability  to  master 342 


PART  VIII. 

THE  LAW  OF  PERSONS  AND  DOMESTIC  RELATIONS. 

CHAPTER  XLIL 
HUSBAND   AND   WIFE. 

553.  The  law  of  persons  and  domestic  relations 343 

554.  Right    to    marry 344 

555.  Fraud  between  parties  engaged   to  be  married 344 

556.  Marriage   345 

557.  Illegal  marriage 345 

558.  Marriage    ceremony 346 

559.  Foreign    marriages 346 

560.  Duties  and  rights  of  husband  and  wife 346 

561.  Divorce    347 

562.  Injuries  between  husband  and  wife 348 

563.  Fraud   between  husband   and   wife 348 

564.  Injuries   by   third    person 349 

CHAPTER  XLIII. 
PARENT    AND   CHILD. 

565.  Legitimacy    351 

566.  Rights  and  duties  of  parent  and   child 352 

567.  Wrongs   as   between   parent   and   child 353 

568.  Fraud  between  parent  and  child 353 

569.  Wrongs  by  third  persons 353 

570.  Child's   interest  in  the   parent 354 


TABLE   OF    CONTENTS  XXVll 

Section.  Page. 

571.  Parent's  interest  in  the   child 354 

572.  Physical  injuries  to  the  child 354 

573.  Enticing    away    the    child 355 

574.  Seduction    355 

CHAPTER  XLIV. 
GUARDIAN    AND    WARD. 

575.  Kinds  of  guardianship 357 

576.  Natural  guardian 357 

577.  Testamentary  guardian 358 

578.  Legal  guardian 358 

579.  Guardian's    deeds 359 

580.  Guardian  ad  litem 359 

581.  Next   friend 359 

582.  Rights  of  guardian  and  ward   in   each   other 360 

583.  Wrongs  between  guardian   and  ward 360 

584.  Guardian    of   the    insane 360 


PART  IX. 
PUBLIC  LAW. 

CHAPTER   XLV. 
CONSTITUTIONAL,   LAW   IN   GENERAL.  • 

585.  Public   law    in   general 362 

586.  Constitutional  law   in  general 362 

587.  The  American  doctrine  of  constitutional  law 364 

588.  Legal   importance   of  the   American    doctrine   of   constitu- 

tional law 365 

589.  Arrangement  of  the  subject 365 

590.  The  separation  of  powers 366 

CHAPTER  XLVL 
FUNDAMENTAL  CONSTITUTIONAL   RIGHTS. 

591.  Fundamental  constitutional  rights 367 

592.  Citizenship   and   naturalization 367 

593.  Suffrage  369 

594.  Freedom  of  speech  and  of  the  press 370 

595.  The  right  to  assemble 870 


XXVlll  TABLE   OF   CONTENTS 

Section.  Page. 

596.  The  right  to  bear  arms 371 

597.  Religious   liberty 371 

598.  Protection  to   persons   accused   of  crime 371 

599.  Due  process  of  the  law  and  equal  protection  of  the  laws 

in   regard   to   procedure 373 

600.  Due  process  and  equal  protection  of  the  laws  in  regard 

to   the   police   power 374 

601.  Due  process  of  law   and   equal   protection   of  the   law   in 

regard  to  taxation 375 

602.  Due    process    and    equal    protection    of    law    in    regard    to 

eminent  domain 376 

602.     Laws    impairing    the    obligation    of    contracts 377 

CHAPTER  XLVII. 
FEDERAL    GOVERNMENT. 

604.  Federal   powers   and   their   exercise 379 

605.  Territories,  dependencies  and  new  states 380 

606.  Interstate  commerce 381 

607.  State    regulation    and   taxation    affecting    interstate    com- 

merce     381 

60S.     Federal  treaty-making  power 382 

609.  Interstate    privileges    and    immunities    and    other    inter- 

state relations 383 

610.  Relations  between  state  and  federal  government 384 

CHAPTER   XLVIII. 
ADMINISTRATIVI>  LAW. 

611.  Administrative  law  in  general 385 

612.  Liability   of  officers  to   suits   for   damages 386 

613.  Liability  of  legislative  officers 387 

614.  Liability  of  executive   and    administrative   officers 387 

615.  Liability    of   judicial    officers 388 

616.  Mandamus    390 

617.  Nature  of  the  action 390 

618.  Quo  warranto 391 

619.  How  obtained 391 

620.  Prohibition    392 

621 .  Habeas    corpus 392 

622.  What  application  must  show — Return 392 

623.  When  legality  of  restraint  will  not  be  inquired  into 393 

624.  Certiorari    393 


TABLE   OF    CONTENTS  XXIX 

CHAPTER  XLIX. 
INTERNATIONAL   LAW. 

Section.  Page. 

625.  Definition    395 

626.  Jurisdiction   over  foreign   ambassadors,   etc 396 

627.  Neutrality    397 

628.  When    war    exists 397 


PART  X. 
COURTS,  REMEDIES  AND  PROCEDURE. 

CHAPTER  L. 
COURTS    IN    GENERAL. 

629.  Courts   and   ttieir  jurisdiction 39S 

630.  Jurisdiction    defined 399 

631.  Federal  courts 399 

632.  The  senate  as  a  court 400 

633.  Judicial  circuits  and  districts 400 

634.  Judicial  power  of  the  United  States 400 

635.  Exclusive  jurisdiction   of   federal    courts 401 

636.  Concurrent  jurisdiction   of  federal   and  state  courts 401 

637.  Jurisdiction  of  the  Supreme  Court  of  the  United  States..  402 

638.  Jurisdiction   of  the  circuit  courts   of  appeals 404 

639.  Jurisdiction   of  the   district  courts 404 

640.  The  court  of  customs  appeals 405 

641.  Jurisdiction  of  the  court  of  claims 405 

642.  United    States    commissioners 406 

643.  Courts  of  the  territories  and  of  the  District  of  Columbia,  406 

644.  State   courts 406 

645.  Jurisdiction  of  state  courts 406 

CHAPTER  LI. 
EQUITY   COURTS. 

646.  Equity    jurisdiction 408 

647.  Injunction — Prohibitory  and  mandatory 409 

648.  General  scope  of  equity  jurisdiction 409 

649.  A   court   of   equity   having   obtained   jurisdiction   will   ad- 

minister full  relief 410 

650.  Suit  in  equity — How  commenced — Pleadings 410 

65L     Evidence  on  hearing 411 


XXX:  TABI.E;    OF    CONTENTS 

CHAPTER    LII. 

admiralty  law  and  procedure. 
Section.  Page. 

652.  Origin  and  history 413 

653.  Admiralty    jurisdiction 413 

654.  Admiralty   procedure 415 

CHAPTER   LHI. 

CIVIL  PROCEDURE. 

655.  Scope  of  chapter , 417 

656.  Civil   actions — Courts — Their   officers — Juries 418 

657.  Actions,  how  commenced — Parties 418 

658.  The  process 418 

659.  How  served  and  returned 419 

660.  Matters    of    defense 419 

661.  Objection  to  jurisdiction,  how  and  when  made 420 

662.  Answers  or  pleas  in  abatement 420 

663.  Issues  of  fact  and  issues  of  law 421 

664.  The  jury 421 

665.  Trial   422 

666.  Evidence   422 

667.  Functions  of  court  and  jury  as  to  evidence 424 

668.  Things   which   need   not   be   proved,    or   of   which   courts 

take  judicial  notice 424 

669.  Written  and  oral  evidence 424 

670.  Attendance  of  witnesses,  how  procured 425 

671.  Competency   of   witnesses 425 

672.  Hearsay  evidence 426 

673.  Exceptions  to  the  rule  excluding  hearsay  evidence 426 

674.  Examination  of  witnesses 427 

675.  Burden   of  proof 427 

676.  Arguments   of  counsel   and   instructions   of   the    court 428 

677.  Deliberations  of  jury  and  verdict 428 

678.  Motion  to  set  verdict  aside  and  for  a  new  trial 429 

679.  Motion   in  arrest  of  judgment 429 

680.  Forms  of  judgments 430 

681.  Appeals  and  writs  of  error 430 

682.  Execution    431 

CHAPTER  LIV. 

SPECIAL   PROCEEDINGS. 

683.  Contempt    432 

684.  Direct  and  indirect  or  constructive  contempt 433 


TABLE   OF   CONTENTS  XXXI 

Section.  Page. 

685.  Attachment    ^33 

686.  How    writ    served 434 

687.  Garnishment   'i"'* 

688.  Capias    435 

689.  Arbitration    435 

690.  Accord    and    satisfaction 436 

691.  Partition   436 

CHAPTER   LV. 
CRIMINAL,   PROCEDURE. 

692.  Arrest    439 

693.  Warrant  for  arrest 439 

694.  When  warrant  void  and  when  valid 440 

695.  Arrest  by   officer  without  warrant 441 

696.  Arrest  by  private  person 441 

697.  Arrest  upon  hue  and  cry 442 

698.  What  an  officer  may  do  in  serving  warrant  and  making 

arrest 442 

699.  Extradition  442 

700.  Examinations,   bail,    etc 443 

701.  Right  to  speedy  trial— presence  of  accused  in  court 444 

702.  Right  of  prisoner  to  have   counsel 444 

703.  Change  of  venue 445 

704.  Application    for    continuance 445 

705.  Indictment — Information    446 

706.  Pleas  to   indictment 447 

707.  Arraignment    447 

708.  Jury  impaneling 447 

709.  Opening   statements   of   counsel 448 

710.  Examination  of  witnesses 448 

711.  Rules  of  evidence 449 

712.  Special  rules  of  evidence  in  criminal  cases 450 

713.  Final    arguments   of   counsel 451 

714.  Conduct   of   jury— Verdict 451 

'ri5.  Motion  for  new  trial— Arrest  of  judgment— Execution. . .  452 


ELEMENTARY    LAW 


PART  I 


NATURE  AND  SOURCES  OF  THE  LAW 

CHAPTER  I 
DEFINITION  AND  NATURE  OF  THE  LAW 

Sec.  Sec. 

1.  Definition  of  law  in  general.  9.  The  right  to  life. 

2.  Law  in  the  abstract  sense.  10.  The   right   of  personal  lib- 

3.  Legal   rights   and   duties.  erty. 

4.  Liberties.  11.  Habeas   corpus. 

5.  Powers.  12.  Right   to  health. 

6.  Moral  rights  and  duties.  13.  Right   to   reputation. 

7.  Scope    of   legal  right.  14.  Right  to  property. 

8.  The    right    of   personal    se-  15.  The  administration  of  jus- 

curity.  tice. 

• 

§  1.  Definition  of  law  in  general. — In  its  broadest 
sense,  law  is  a  rule  of  action.  The  term  is  applied 
indiscriminately  to  all  kinds  of  action  and  includes  the 
physical  laws  of  nature  as  well  as  the  human  laws  of 
society.  The  laws  of  nature  are  rules  of  action  in  the 
physical  world  of  matter  and  force  and  are  formu- 
lated and  studied  in  the  sciences  of  Astronomy,  Geol- 
ogy, Physics,  Chemistry  and  Biology.  The  laws  of 
society  are  rules  of  human  activity  and  conduct,  and 
their  study  is  embraced  in  the  sciences  of  Sociology, 
History,  Ethics,  Religion,  Economics,  Political  Gov- 
ernment, and  Jurisprudence. 
1 — Elem.  Law.  \ 


2  ELEMENTARY   LAW  [§  1 

The   laws   of  nature   are   eternal   and   unchangeable 
principles   of   action   inherent    in   matter   and   force,    in 
accordance  with   which   physical  changes  actually  and 
invariably  occur.     The  law  of  gravitation  is  a  rule  in 
accordance  with  which  all  physical  bodies  attract  each 
other.     The   laws   of   chemical   attraction   are   rules   in 
accordance  with  which  atoms  unite  to  form  molecules. 
Such   physical    laws    have   always    existed,    apart    from 
the  human  intellect,  and  have  merely  been  discovered 
and  formulated  by  scientists.     Human  laws,  however, 
have   their  origin  in   the   human   intellect  and   are   the 
rules,    conditions    and    restrictions    under    which    men, 
naturally  independent,   unite  themselves  in  society  for 
their  mutual  welfare.     They  are  an  outgrowth  of  the 
habits,    manners,    customs    and    usages    of   society   and 
exist  in  the  family,  the  clan,  and  the  tribe,  as  well  as 
in  the  city,  state  and  nation.     A  few  simple  and  prac- 
tical  rules  formulated  by  a   chieftain   and  perpetuated 
by  oral  tradition  may  constitute  the  law  of  a  wander- 
ing   tribe    of    savages    or    nomadic    shepherds,    but    as 
civilization   becomes    complicated   by   commerce,    agri- 
culture,  and   the   arts,   the   law  must   become   complex 
and  voluminous.     Human  laws  are  the  product  of  evo- 
lution, growth  and  development. 

The  lav/  of  the  state  is  defined  by  Justinian  in  the 
Institutes  thus:  Law^  is  a  sacred  sanction  commanding 
what  is  honest  and  prohibiting  the  contrary.  Cicero 
defines  it  as  a  legal  sanction,  implying  a  penalty  for 
enforcing  obedience,  rather  than  a  sacred  sanction.  In 
modern  jurisprudence,  the  following  general  definitions 
have  been  approved  by  the  courts:  Law  is  a  rule  of 
action  prescribed  by  competent  authority.  Law  is  a 
rule  of  civil  conduct  prescribed  by  the  supreme  power 
in  a  state. 

In  America  this   supreme  power  rests  in  the  peo- 


§  2]  DEFINITION    AND    NATURE    OF    THE    LAW  3 

pie,  under  a  written  constitution,  formulated  by  their 
representatives.  Its  preamble  reads,  "We  the  people 
of  the  United  States,  *  *  *  do  ordain  and  establish 
this  Constitution."  It  emanates  from  the  people,  the 
depository,  and  the  only  one,  of  all  political  power;  it 
is  therefore  the  supreme  law  of  the  land,  the  ele- 
mentary law  of  the  nation;  and  a  thorough  study  of 
its  provisions,  its  preamble  and  its  amendments  is  es- 
sential to  an  understanding  of  the  nature  and  sources 
of  American  law. 

§  2.  Law  in  the  abstract  sense. — Law  in  the  con- 
crete sense  is  most  frequently  used  as  synonymous  with 
statute.  Thus  the  acts  of  a  state  legislature  are  gen- 
erally referred  to  as  the  law  of  the  state.  It  is  quite 
common  to  refer  to  a  federal  statute  as  a  law  of  Con- 
gress. Law  in  the  abstract,  however,  refers  to  the 
legal  rules  and  principles  observed  by  the  courts.  Pro- 
fessor Gray  of  the  Harvard  Law  School  defines  the 
law  of  the  state  as  that  body  of  rules  and  principles 
observed  by  the  courts  in  the  determination  of  legal 
rights  and  duties.  In  other  words,  the  law  is  what  the 
court,  in  the  performance  of  its  judicial  functions,  de- 
termines to  be  the  law.  Under  our  legal  and  govern- 
mental system,  the  courts  construe,  interpret,  and  ap- 
ply the  law,  and  from  their  determination  there  is  no 
appeal.  It  is  the  rule  and  construction  of  the  court 
which  the  administration  must  enforce,  and  to  which 
the  public  must  conform.  Under  a  system  of  separa- 
tion of  powers  between  the  legislative,  executive,  and 
judicial  departments  of  government,  in  which  the  pow- 
ers of  legal  exposition  and  interpretation  are  the  ex- 
clusive functions  of  the  judiciary,  the  rules  and  princi- 
ples followed  by  the  courts  must  of  necessity  be  the 
law.     Their  construction  is  the  final  test  and  determi- 


4  ELEAIIiNTARY    LAW  [§  2 

nation  of  what  the  law  is.  This  does  not  mean  that 
the  courts  are  free  to  lay  down  rules  and  principles 
according  to  their  individual  sense  of  justice,  for  the 
state  directs  them  to  legal  sources  from  which  the 
great  bulk  of  their  rules  and  principles  are  evolved, 
and  which  the  courts  are  under  the  most  solemn  obli- 
gations to  observe  and  respect. 

In  the  abstract  sense  the  statutes  enacted  by  the 
legislature  constitute  merely  one  of  the  sources  of  the 
law  and  not  a  part  of  it.  If  the  statutes  interpreted 
and  applied  themselves,  then  they  would  indeed  be  in 
fact  a  portion  of  the  law.  But  since  the  statutes  do 
not  generally  interpret  themselves,  their  meaning  must 
be  determined  by  the  courts,  and  in  strictness,  it  is  the 
meaning  so  determined  and  no  other  that  is  the  law. 
As  above  indicated,  the  courts  are  bound  by  solemn 
obligations  to  observe  the  legal  sources,  which  in  the 
case  of  statutes  would  mean  to  give  to  the  statute  the 
meaning  intended  by  its  framers,  notwithstanding, 
however,  it  is  the  meaning  of  the  statute  as  finally 
determined  by  the  court  that  constitutes  a  part  of  the 
law  of  the  state. 

It  is  important  to  bear  in  mind  this  definition  of  the 
law  in  order  that  there  may  be  no  confusion  between 
legal  rules  on  the  one  hand  and  rules  of  ethics,  politics, 
and  philosophy  on  the  other.  In  times  past  this  con- 
fusion has  been  too  common.  Many  definitions  of  the 
law  of  the  state  have  included  the  elements  of  the 
"good  and  equitable,"  the  "dictates  of  reason,"  the 
"abstract  expression  of  the  general  will,"  or  the  will 
of  the  monarch  or  ruling  body.  Obviously  all  such 
definitions  are  incorrect  and  misleading;  .they  tend  to 
confuse  law  with  ethics  and  philosophy.  If  the  highest 
courts  declare  a  certain  rule  to  be  the  law,  it  is  in  fact 
the  law  regardless  of  whether  it  is  "good   and   equit- 


§  4]  DEFINITION    AND    NATURIJ    OF    THE    LAW  5 

able,"  or  the  "dictate  of  reason,"  or  the  "abstract  ex- 
pression of  the  general  will,"  or  the  wish  of  the  mon- 
arch or  ruling  body. 

§  3.  Legal  rights  and  duties. — The  ultimate  pur- 
pose of  the  law  is  the  maintenance  of  order  and  jus- 
tice. This  is  secured  by  creating  legal  rights  and 
duties  which  are  enforced  or  recognized  by  the  state. 
Rights  and  duties  are  correlative.  One  can  not  exist 
without  the  other.  There  can  be  no  right  in  one 
person  without  a  corresponding  duty  in  one  or  more 
other  persons  to  respect  that  right.  A  has  a  right  to 
his  life.  Then  all  other  persons  are  under  legal  duty 
to  respect  that  right.  If  A  makes  a  valid  contract 
with  B  in  which  he  agrees  to  pay  him  one  hundred 
dollars  for  B's  spotted  cow  and  the  cow  is  properly 
delivered,  then  B.has  a  right  to  receive  one  hundred 
dollars,  and  it  is  the  duty  of  A  to  pay  it.  The  state 
has  the  right  to  have  the  public  peace  undisturbed. 
This  means  the  public  are  under  obligations  to  do 
nothing  that  will  disturb  the  public  peace.  If  one  com- 
mits murder  or  engages  in  a  fight  he  violates  this  duty 
and  will  be  punished  by  the  state. 

§  4.  Liberties. — In  certain  cases  the  term  right  is 
used  in  a  broader  meaning  than  the  one  here  dis- 
cussed, and  includes  not  only  the  strict  legal  rights 
that  are  correlative  to  duties,  but  also  liberties  and 
powers.  A  liberty  is  the  freedom  to  do  a  certain 
thing.  It  is  recognized  and  allowed  by  law,  but  not 
protected  by  a  corresponding  legal  duty.  Thus  the 
right  to  destroy  my  own  property  is  a  liberty  in  that 
the  law  will  permit  it  and  it  is  not  wrong  for  others 
to  prevent  me,  so  long  as  the  prevention  does  not 
violate   some   strict  legal  right.     The  right  of  one   to 


6  ELEMENTARY    LAW  [§  5 

raise  flowers  on  his  land  is  another  example  of  a 
liberty,  for  the  law  will  permit  it,  and  yet  it  will  not 
punish  one  who  prevents  it  by  so  constructing  a 
building  upon  his  adjoining  land  as  to  cut  off  the 
afternoon  sun,  thus  causing  the  flowers  to  wither  and 
die.  It  is  not  a  strict  legal  right,  for  there  is  no  legal 
duty  to  correspond.  In  short,  liberties  are  those  things 
which  the  law  permits  but  does  not  protect.  There 
are  many  of  these  liberties,  and  some  of  them  receive 
indirect  protection  as  incidental  to  the  protection  of 
strict  legal  rights.  Thus  if  one  interferes  with  me  in 
the  destruction  of  my  property,  which  is  a  liberty,  it 
will  be  difificult  for  him  to  do  so  without  seizing  my 
person,  trespassing  upon  my  property  or  invading 
some  other  strict  legal  right,  for  the  violation  of  which 
the  law  will  afford  redress. 

§  5.  Powers. — A  power  is  the  ability  or  capacity 
conferred  on  one  by  law  to  determine  legal  relation- 
ships. Examples  are  the  right  to  make  a  will,  the 
right  to  alienate  one's  property,  the  right  to  bring 
suit  in  a  court  of  law  and  the  various  powers  vested 
in  public  officers.  The  right  to  make  a  will  is  not  a 
right  in  its  strict  sense,  for  there  is  no  duty  that  is 
correlative.  It  is  merely  the  capacity  to  determine 
the  ownership  of  the  property  after  the  owner's  death. 
Powers  are  either  public  or  private.  They  are  public 
when  they  are  exercised  by  persons  as  agents  of  the 
state,  and  they  are  private  when  vested  in  persons 
to  be  used  for  their  own  private  purposes.  In  cre- 
ating liberties  the  law  provides  individuals  with  cer- 
tain recognized  spheres  of  unrestrained  activity,  and 
in  creating  powers  it  gives  to  them  authority  or 
capacity  to  create  or  alter  legal  relationships.  Thus 
the  relationships  between  individuals  and  between  in- 


§  7]  DEFINITION    AND    NATURE    OF    THE    IvAW  7 

dividuals  and  the  state  are  regulated  through  the  cre- 
ation of  strict  legal  rights,  duties,  liberties  and  powers, 
determined  and  enforced  or  recognized  by  the  authori- 
ties of  the  state. 

§  6.  Moral  rights  and  duties. — Care  must  be 
taken  to  distinguish  between  legal  rights  and  duties 
and  moral  rights  and  duties.  While  it  is  believed  and 
hoped  that  there  is  a  close  agreement  between  the 
two,  there  is  no  necessary  relationship.  The  two  are 
separate  and  distinct,  the  latter  belonging  wholly  to 
the  realm  of  ethics  or  religion,  with  which  we  are  not 
here  directly  concerned.  It  may  be  one's  moral  duty 
to  give  his  starving  neighbor  food,  but  one  is  under 
no  legal  obligation  to  do  so  and  the  neighbor  has  no 
legal  right.  This  is  but  one  of  the  many  relationships 
for  which  the  state  has  established  no  legal  obligation. 
As  Professor  Amos  says:  "A  man  may  be  a  bad 
husband,  a  bad  father,  a  bad  guardian,  without  violat- 
ing a  law.  He  may  be  an  extortionate  landlord,  a 
wasteful  tenant,  a  hard  dealer,  an  unreliable  trades- 
man, and  law  can  not  touch  him.  He  may  be  a  ras- 
cally politician,  a  demagogue,  an  indolent  aristocrat, 
and  yet  satisfy  to  the  utmost  the  claims  of  the  law." 

A  right  resting  upon  the  law  of  the  state  can  be 
enforced  or  vindicated  by  a  court,  and  such  a  right 
implies  a  legal  obligation  to  do  or  forbear.  A  right 
resting  upon  moral  or  social  laws  may  be  valuable 
and  its  transgression  may  cause  pain,  suffering  and 
discomfort,  but  it  can  not  be  enforced  or  vindicated 
by  a  court  or  by  any  positive  sanction.  It  is  the 
province  of  courts  and  lawyers  to  deal  with  rights  of 
legal  obligation  alone. 

§  7.     Scope  of  legal  right. — As  above  indicated,  the 


8  ElvEMEINTARY    LAW  [§  8 

law  does  not  enforce  every  moral  duty  or  protect 
every  moral  right.  It  is  thought  unwise  for  the  state 
to  interfere  too  minutely  with  the  affairs  of  its  citi- 
zens, and  the  policy  of  the  law  is  to  recognize  only 
such  rights  and  duties  as  experience  seems  to  show 
that  the  necessities  of  the  public  welfare  require.  In 
order  that  the  reader  may  at  the  beginning  get  some 
idea  of  the  nature  and  scope  of  the  rights  protected 
by  the  law,  a  brief  summary  of  some  of  the  more 
fundamental  legal  rights  is  given  in  the  succeeding  sec- 
tions. 

§  8.  The  right  of  personal  security. — The  right  of 
personal  security  is  the  most  important  of  all  rights 
and  it  consists  in  a  person's  legal  and  uninterrupted 
enjoyment,  (a)  of  the  right  to  life,  (b)  of  the  right 
to  limbs,  body,  etc.,  (c)  right  to  the  preservation  of 
health,  (d)  the  right  to  one's  reputation,  (e)  the  right 
of  free  speech  and  locomotion. 

§  9.  The  right  to  life. — The  right  to  life  begins 
with  the  first  pulsations  in  the  unborn  child.  It  is 
everywhere  a  moral  wrong,  and  in  most  civilized 
countries  it  is  a  legal  wrong  to  destroy  human  life, 
even  in  its  first  manifestations.  The  right  to  life  im- 
plies the  right  to  preserve  it,  and  from  this  springs 
the  right  of  self-defense,  a  right  recognized  by  the 
law.  Besides  the  right  of  the  individual  to  repel  a 
deadly  assault  by  taking  the  life  of  his  assailant,  soci- 
ety has  the  right  to  punish  with  death  any  one  who 
unlawfully  takes  the  life  of  another.  Blackstone  and 
the  earlier  writers  base  the  moral  right  of  capital 
punishment  upon  the  Mosaic  law,  but  the  better  view 
now  is  that  it  has  always  rested  upon  grounds  of  pub- 
lic policy  and  can  only  be  justified  when  and  because 


§  11]  DEFINITION    AND    NATURE    OF    THE    LAW  9 

it    is    necessary    for    the    preservation    and    security    of 
society. 

§  10.  The  right  of  personal  liberty. — The  right  of 
personal  liberty  is  secured  by  that  provision  of  the 
Constitution  w^hich  declares  that  "No  person  *  *  * 
shall  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law."  "The  meaning  of  this  is,"  as 
Webster  said  in  his  speech  in  the  Dartmouth  College 
case,  "that  every  citizen  shall  hold  his  life,  liberty, 
property  and  immunities  under  the  protection  of  gen- 
eral rules  which  govern  society."  This  term  "liberty" 
is,  as  has  been  said,  a  negative  term  denoting  the 
absence  of  restraint.  But  it  is  more — it  implies  the 
right  to  think,  to  speak,  to  act  individually  or  with 
others,  to  labor  for  one's  support  without  molestation 
from  others;  it  means  the  right  to  the  full  exercise 
of  one's  faculties  in  lawful  ways.  Civil  liberty,  which 
is  here  meant,  is  liberty  restrained  so  far  as  is  neces- 
sary for  the  common  good.  Any  interference  with 
such  liberty  is  a  legal  wrong. 

§  11.  Habeas  corpus. — To  prevent  unlawful  inva- 
sions of  the  right  to  liberty  the  English  habeas  corpus 
act  of  the  year  1679  has  been  re-enacted  generally  in 
the  American  States.  The  writ  is  an  order  of  court 
directed  to  a  person  detaining  another,  commanding 
him  to  produce  the  body  of  the  prisoner  before  the 
court  or  judge,  to  determine  the  legality  of  his  com- 
mitment. To  further  secure  the  right  the  Constitution 
of  the  United  States  declares  that  "The  privilege  of 
the  writ  of  habeas  corpus  shall  not  be  suspended  unless 
when  in  case  of  rebellion  or  invasion  the  public  safety 
may  require  it."  The  writ  lies  for  the  liberation  of  a 
prisoner  held  for  an  act  which  does  not  constitute  any 


10  ELICMENTARY   LAW  [§  12 

offense  known  to  the  law,  or  a  prisoner  sentenced  by  a 
court  without  jurisdiction,  or  detained  in  prison  after 
a  pardon  has  been  granted.  The  law  also  gives  one 
who  is  unlawfully  restrained  of  his  liberty  a  civil  ac- 
tion against  the  wrongdoer. 

§  12.  Right  to  health. — The  right  to  the  preserva- 
tion and  enjoyment  of  health  is  protected  and  enforced 
by  suitable  laws.  No  one  has  the  right  to  do  any- 
thing which  will  impair  the  health  of  another.  To 
create  or  maintain  a  nuisance  by  carrying  on  a 
noisome  trade  in  a  thickly  populated  neighborhood, 
to  the  discomfort  of,  or  to  the  injury  of  the  health  of 
the  citizens,  would,  where  the  wrong  was  sufhcient  to 
amount  to  a  public  nuisance,  be  punished  by  the  crim- 
inal law,  and  if  the  injury  is  confined  to  one  or  only 
a  few  of  the  citizens,  they  have  a  right  of  action  in 
which  damages  for  the  injury  may  be  recovered  from 
one  who  creates  or  maintains  the  nuisance,  and  in  a 
proper  case  the  courts  will  interfere  by  injunction  and 
prohibit   its   continuance. 

Various  statutory  and  constitutional  provisions  ex- 
ist in  the  different  states  for  the  establishment  of  local 
boards  of  health,  which  have  broad  administrative  and 
executive  functions.  Among  the  principal  laws  and 
ordinances  pertaining  to  health  are  those  concerning 
the  quarantine  of  contagious  diseases,  the  disinfection 
of  exposed  property,  the  vaccination  of  school  children 
and  adults  to  prevent  epidemics,  the  maintenance  of 
public  hospitals,  and  the  suppression  of  nuisances  and 
offensive  occupations. 

§  13.  Right  to  reputation. — The  right  to  one's  rep- 
utation is  protected  and  enforced  by  the  laws  on  the 
subject  of  libel  and  slander  and  malicious  prosecution. 


§  14]  DEFINITION    AND    NATURE    OF    THE    LAW  11 

To  write  and  publish  anything  of  another  which  is 
false,  and  which  either  charges  a  crime  or  holds  one 
up  to  public  scorn  or  ridicule,  is  libelous,  and  subjects 
the  author  to  an  action  for  damages,  and  in  many 
states  to  a  criminal  prosecution  also.  To  say  falsely 
of  a  man  that  he  has  been  guilty  of  a  crime  which 
would  subject  him  to  infamous  punishment,  or  to  say 
falsely  of  a  woman  that  she  is  unchaste,  is  slander, 
and  the  injured  party  may  recover  damages  of  the 
offender  in  a  civil  action.  To  charge  a  man  falsely 
before  a  magistrate  with  the  commission  of  a  crime 
with  malice  and  without  probable  cause  is  malicious 
prosecution  for  which  in  a  proper  case  damages  will 
be  awarded  to  the  injured  party. 

§  14.  Right  to  property. — The  right  of  property 
is  secured  by  the  fifth  amendment  to  the  Constitution 
of  the  United  States  which  provides  that:  "No  per- 
son shall  be  deprived  of  life,  liberty  or  property  with- 
out due  process  of  law,"  and  by  the  fourteenth  amend- 
ment, which  provides  that:  "No  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,  nor  shall 
any  state  deprive  any  person  of  life,  liberty  or  prop- 
erty without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  laws." 

The  right  of  property  is  the  right  of  dominion, 
ownership,  possession.  Law  writers  have  different 
theories  of  the  origin  of  this  right.  Blackstone  says, 
"The  earth  and  all  things  therein  were  the  general 
property  of  mankind  from  the  immediate  gift  of  the 
Creator.  *  *  *  gy  ^.j^^  j^^  ^f  nature  and  reason, 
he  who  first  began  to  use  it  (property)  acquired 
therein    a    kind    of    transient    property    that    lasted    as 


12  El^EMENTARY   1,AW  [§15 

long  as  he  was  using  it  and  no  longer;  or  to  speak 
with  greater  precision,  the  right  of  possession  con- 
tinued for  the  same  time  only  that  the  act  of  posses- 
sion lasted.  Thus  the  ground  was  in  common  and 
no  part  was  the  permanent  property  of  any  man  in 
particular;  yet  whoever  was  in  the  occupation  of  any 
determined  spot  of  it  for  rest,  or  shade,  or  the  like, 
acquired  for  the  time  a  sort  of  ownership,  from 
which  it  would  have  been  unjust  and  contrary  to  the 
law  of  nature  to  have  driven  him  by  force,  but  the 
instant  that  he  quitted  the  use  or  occupancy  of  it, 
another  might  seize  it  without  injustice."  Today  all 
the  important  interests  in  property  are  recognized  as 
legal  rights,  a  large  portion  of  our  law  having  to  do 
with  this  important  subject.  The  complex  law  of  real 
and  personal  property  as  it  exists  today,  embracing 
over  half  of  the  volume  of  the  law,  is  but  an  elaborate 
recognition  and  enforcement  of  the  rights  of  persons 
in  tangible  things, 

§  15.  The  administration  of  justice. — The  admin- 
istration of  justice  according  to  law  is  the  enforce- 
ment, recognition  or  protection  of  legal  rights 
through  the  physical  power  of  the  state.  Justice  and 
order  can  not  be  established  through  the  mere  cre- 
ation and  definition  of  legal  rights  and  duties.  Peo- 
ple frequently  disagree  as  to  what  their  rights  and 
duties  are,  and  courts  of  law  are  necessary  to  deter- 
mine such  disagreements  in  each  specific  case.  But 
this  is  insufficient,  for  many  people  will  not  perform 
their  duties  or  recognize  the  rights  of  others  though 
they  be  clearly  understood.  The  rewards  of  law  vio- 
lators are  frequently  great  and  nothing  save  the  physi- 
cal power  of  the  state  can  effectually  restrain  them. 
In  applying  this  power  several  kinds  of  legal  proceed- 


§  ]5j  DEFINITION    AND    NATURIi    OF    Tllli    I,AW  13 

ings  or  remedies  have  been  developed.  The  most  com- 
mon of  these  proceedings  or  remedies  fall  into  four 
general  classes,  which  may  be  designated  as  prevent- 
ive, compulsory,  compensatory  and  punitive  proceed- 
ings, respectively. 

The  most  common  example  of  the  first  is  the  in- 
junction. If  under  certain  conditions  one's  property 
rights  are  threatened  with  irreparable  damage  the 
courts  will  enjoin  the  offending  party  from  doing  that 
which  endangers  the  property,  and  if  the  injunction 
is  not  strictly  observed,  the  offender  may  be  fined 
or  cast  into  jail  by  the  order  of  the  court. 

The  most  common  example  of  compulsory  proceed- 
ings is  the  decree  of  specific  performance  in  which, 
under  certain  conditions,  the  courts  will  compel  a  man 
to  live  up  to  his  contractual  obligations  or  put  him  in 
jail  for  contempt  until  he  does.  If  A  agrees  for  a 
price  to  convey  to  B  his  forty-acre  farm,  but  later  re- 
fuses to  convey  the  farm,  B  may  secure  a  decree  of 
specific  performance  against  him  and  A  will  be  com- 
pelled to  convey  or  go  to  jail.  Another  example  is 
what  is  known  as  the  action  of  replevin,  whereby 
goods  unlawfully  detained  by  another  may  be  recov- 
ered by  the  owner. 

Compensatory  proceedings  are  generally  suits 
brought  to  recover  damages  by  way  of  compensation 
for  injuries  resulting  from  the  violation  of  legal 
rights.  Thus  if  A  refuses  to  convey  his  forty-acre 
farm  to  B  according  to  their  contract,  instead  of  secur- 
ing a  decree  of  specific  performance,  B  may,  if  he 
wishes,  bring  suit  for  damages,  and  the  court  will 
compel  A  to  pay  an  amount  of  damages  equal  to  the 
loss  which  B  has  sustained  by  reason  of  A's  refusal 
to  perform  his  duty.  If  the  damages  are  not  paid  the 
officers  of  the  court  will  seize  A's  property  and  sell  it 


14  ELEMENTARY    LAW  [§  15 

to  pay  the  damages.  Likewise,  if  X  wrongfully  de- 
stroys property  belonging  to  Y  the  latter  may  bring 
suit  for  damages  and  X  will  be  compelled  to  pay  Y 
enough  money  to  compensate  him  for  his  loss.  Num- 
berless other  examples  might  be  cited  where  persons 
may  be  compelled  to  make  due  reparation  through  the 
payment  of  damages  for  injuries  resulting  from  their 
failure  to  perform  their  legal  duties  or  to  properly  re- 
spect the  rights  of  others. 

Punitive  proceedings  are  generally  known  as  crim- 
inal prosecutions  and  are  brought  by  the  state  to 
punish  persons  who  have  violated  certain  commands 
of  the  state.  The  state  has  a  right  to  have  these 
commands  obeyed.  The  primary  object  here  is  not 
to  compel  the  guilty  one  to  make  reparation  for  the 
injury  his  wrongful  act  has  done,  but  to  punish  him 
for  the  wrong  and  to  deter  others  from  committing 
like  offenses.  When  a  person  commits  murder,  rob- 
bery, arson  or  other  crime  he  may  be  prosecuted,  and 
if  convicted  he  may  be  punished  by  being  executed, 
imprisoned  or  fined,  depending  upon  the  penalty  in 
each  case.  The  main  purpose  of  such  punitive  pro- 
ceedings is  to  prevent  the  violation  of  the  criminal 
laws  of  the  state.  The  theory  is  that  the  penalties 
are  so  severe  that  the  self-interest  of  the  individual 
will  cause  him  to  observe  rather  than  to  violate   the 

law. 

In  addition  to  the  proceedings  or  remedies  here 
discussed  there  are  others  not  quite  so  common, 
known  as  the  extraordinary  legal  remedies,  which 
will  be  discussed  in  a  later  chapter.  However,  it  is 
mainly  through  the  four  classes  of  proceedings  above 
discussed  that  the  physical  force  of  the  state  is  in- 
voked in  the  protection  and  enforcement  of  legal 
rights  and  duties. 


Sec. 

Sec. 

16. 

Written       and       unwritten 
laws. 

20. 

17. 

Kinds    of    written    law    in 
the   United   States. 

21. 

18. 

The  unwritten  or  common 
law. 

22. 

19. 

Historical  and  legal  sources 
of  the  law. 

CHAPTER  II 
KINDS  AND  SOURCES  OF  LAW  IN  THE  UNITED  STATES 


Historical    sources    of    the 

common  law. 
Growth     of     the     common 

law. 
Common  law  in  the  United 

States. 


§  16.  Written  and  unwritten  laws. — It  is  to  be 
noticed  that  this  distinction  between  written  and  un- 
written law  is  an  attempt  to  classify  the  law  accord- 
ing to  its  sources.  All  the  rules  and  principles  which 
have  their  source  in  formally  enacted  law,  such  as 
statutes  and  written  constitutions,  constitute  that 
part  of  the  law  known  as  the  written  law,  while  the 
sum  of  the  remaining  rules  and  principles  compose 
the  body  of  the  unwritten  law.  In  actual  practice 
the  term  written  law  is  rarely  used,  it  being  spoken 
of  as  statutes  or  legislation  and  constitutions,  as  the 
case  may  be,  while  the  unwritten  law  is  more  usually 
referred  to  as  the  common  law. 

§  17.  Kinds  of  written  law  in  the  United  States. — 
Owing  to  the  peculiar  form  of  our  government,  our 
written  laws  are  of  different  dignity  and  authority. 
Our  national  constitution  declares  that:  "This  Consti- 
tution, and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which   shall  be   made,   under   the   authority   of   the 

15 


16  ELEMENTARY   LAW  [§18 

United  States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  state  shall  be  bound  thereby, 
any  thing  in  the  Constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding."  Next  in  dignity  and 
authority  are  the  written  constitutions  of  the  several 
states  and  the  acts  of  the  legislatures  of  the  states 
respectively;  to  these  may  be  added  the  ordinances 
of  cities  and  towns.  These  constitutions,  treaties, 
acts  of  congress  and  acts  of  the  legislature,  and  ordi- 
nances, as  interpreted  and  administered  by  Hie  courts, 
constitute  the  written  law  which  governs  the  people 
of  the  United  States. 

§  18.  The  unwritten  or  common  law. — We  have 
now  to  speak  of  the  unwritten  or  common  law.  The 
phrase  common  law  is  here  used  in  contradistinction 
to  statute  law  and  law  as  contained  in  written  con- 
stitutions, although  it  may  also  be  appropriately  used 
in  contradistinction  to  the  civil  or  canon  law,  ad- 
miralty and  maritime  jurisprudence,  and  very  often 
to  equity.  In  the  sense  here  used  it  is  an  unwritten 
law,  which  receives  its  binding  force  from  immemorial 
usage  and  universal  reception,  or  judicial  precedent, 
in  distinction  from  written  or  statute  law.  Its  rules 
or  principles  are  to  be  found  in  the  text-books  written 
by  men  learned  in  the  law,  in  the  records  of  the  courts 
and  in  the  reports  of  judicial  decisions.  As  a  rule  of 
civil  conduct  it  is  of  binding  obligation  upon  all  until 
it  is  modified  or  overruled  by  statute  law. 

The  common  law  varies  in  different  states.  While 
based  on  the  same  legal  system,  it  is  administered 
and  developed  in  many  different  states  by  as  many 
different  courts.  That  certain  differences  should  de- 
velop is  therefore  inevitable.  The  United  States  as 
a    nation    has    no    common    or    unwritten    law.      The 


§  19]  KINDS  AND   SOURCES  OF  LAW   IN   THE   U.   S.  17 

national  or  federal  courts  administer  the  common 
law  as  they  find  it  to  exist  in  the  states  respectively. 
The  law  of  Louisiana,  however,  is  not  the  common 
law,  but  is  based  upon  the  principles  of  the  civil  law 
which  came  to  Louisiana  from  France.  The  law  of 
most  of  the  other  states  finds  its  source  in  the  com- 
mon law  as  it  was  established  and  administered  in 
England  and  her  colonies  and  such  statutes  as  were 
applicable  thereto  at  the  time  of  the  separation,  and 
in  the  judicial  precedents  and  established  customs  of 
the  state. 

§  19.     Historical   and   legal   sources   of   the   law. — 

The  sources  of  the  law  supply  the  substance  of  the 
rules  and  principles  which  the  courts  lay  down  in 
the  performance  of  their  judicial  functions.  These 
sources  are  either  legal  or  historical.  Legal  sources 
are  those  recognized  by  the  rules  of  law  and  which 
it  is  the  solemn  duty  of  the  courts  scrupulously  to 
observe.  Thus  statutes  are  legal  sources,  for  it  is  a 
rule  of  law  that  in  the  determination  of  judicial  con- 
troversies the  courts  must  have  resort  to  any  legisla- 
tion that  is  applicable  to  the  pending  controversy. 
Historical  sources  are  those  from  which  the  ideas 
originate  which  later  become  embodied  in  the  law 
through  the  legal  sources.  For  instance,  a  statute 
prohibits  murder.  The  legal  source  of  that  portion  of 
the  law  is  the  statute,  while  the  historical  source  may 
be  the  Biblical  commandment,  **Thou  shalt  not  kill," 
or  any  other  source  from  which  the  framers  of  the 
statute  received  the  idea  of  prohibiting  such  an  act. 
It  is  important  to  carefully  distinguish  between  the 
legal  and  historical  sources  of  the  law,  since  it  is 
only  through  the  legal  sources  that  principles  find 
entrance  into  the  law  of  the  state.  The  legal  sources 
2 — Elem.  Law. 


18  EI^EMENTARY  LAW  [§20 

of  the  law  are  statutes,  custom  and  precedent,  which 
will  be  discussed  in  succeeding  chapters. 

§  20.  Historical  sources  of  the  common  law. — 
The  historical  sources  of  the  common  law  have  been 
said  to  be  undiscoverable.  It  is  the  sum  of  innumer- 
able accretions  from  ancient  customs  and  usages 
which  began  among  the  people  of  England,  which 
customs  are  sometimes  designated  as  the  "ancient 
Saxon  privileges,"  or  the  bod}^  of  laws  framed  by- 
Alfred  the  Great  and  reaffirmed  by  Edward  the  Con- 
fessor. In  making  this  compilation,  Alfred  drew  upon 
the  Mercian  laws  existing  in  the  counties  bordering 
on  Wales  and  retaining  old. British  customs;  upon 
the  West  Saxon  of  southern  and  southwestern  coun- 
ties of  England;  and  upon  the  Danish  of  the  western 
coast,  where  a  Danish  settlement  had  been  effected. 
Some  affirm,  with  apparent  good  reason,  that  it  was 
framed  in  part  from  the  Old  Testament;  portions  of 
it  were  undoubtedly  taken  from  the  principles  of  the 
Roman  Pandects.  These  were  compiled  by  Roman 
lawyers  by  command  of  Justinian  from  the  writings 
and  opinions  of  the  old  Roman  jurists  and  formed  a 
part  of  the  body  of  the  civil  law  of  Rome,  which  has 
been  accepted  as  the  basis  of  medieval  legislation  and 
of  nearly  all  European  law.  The  spirit  of  these  laws 
found  its  way  into  England  through  the  clergy,  who 
were  the  only  learned  class  of  that  period.  Some 
centuries  later  the  laws  themselves  became  embodied 
in  the  common  law  of  England  in  a  more  positive 
and   extensive   form. 

§  21.  Growth  of  the  common  law. — At  the  time 
of  the  Norman  conquest  the  invaders  found  the  Eng- 
lish   people    living   under   a    code    of    laws    which    was 


§22]  KINDS  AND   SOURCES  OF   LAW   IN   THE  U.   S. 


19 


compiled  by  Edward  the  Confessor,  upon  the  basis 
of  the  code  of  Alfred,  which  has  already  been  men- 
tioned. The  renewal  by  Magna  Charta  of  the  "an- 
cient Saxon  privileges"  was  the  re-enactment  of  a  part 
of  the  code  of  Edward.  Although  the  common  law 
is  an  unwritten  law,  its  rules  and  principles  have  been 
handed  down  from  generation  to  generation,  and 
sometimes  have  almost  approached  in  exactitude  the 
complete  and  precise  form  of  statute  law.  An  illus- 
tration of  the  adaptability  of  the  common  law  to  the 
wants  of  society  is  found  in  the  manner  in  which  the 
rules  of  the  law  merchant  were  incorporated  into  or 
were  assimilated  by  the  common  law.  During  the 
operation  of  the  feudal  system  the  rules  of  the  com- 
mon law  were  inadequate  to  the  needs  of  the  mer- 
cantile classes.  As  controversies  came  before  the 
courts,  they  were  in  the  habit  of  applying  to  com- 
mercial contracts  the  rules  which  had  been  adopted 
among  merchants  in  their  business  dealings,  just  as 
courts  now  interpret  and  enforce  the  contracts  of  men 
engaged  in  the  various  callings  of  life,  according  to 
the  customs  and  usages  prevailing  i'n  such  callings. 
So  numerous  were  the  rules  of  the  law  merchant,  and 
so  important  had  the  mercantile  classes  become,  that 
by  a  statute  enacted  during  the  reign  of  James  I 
these  rules  were  declared  to  be  a  part  of  the  common 
law.  And  substantially  as  they  were  when  this  stat- 
ute was  enacted,  they  have  come  to  be  a  part  of  the 
common  law  of  the  United  States. 

§22.     Common    law    in    the    United    States. — The 

common  law  of  the  states  comprising  the  United 
States  consists  of  the  common  law  of  England  as 
modified  by  English  statutes  previous  to  the  coloniza- 
tion of  America,  so  far  as  it  was  adapted  to  the  al- 


20  •  ELEMENTARY   LAW  [§22 

tered  conditions  and  circumstances  of  the  colonies, 
and  those  Enghsh  statutes  passed  afterwards  prior 
to  the  American  Revolution,  which  were  practically 
accepted  and  adopted  in  America,  and  the  judicial 
precedents  and  established  customs  of  the  states  them- 
selves. The  common  law  is  presumed  to  exist  in  the 
colonial  states  and  in  states  where  the  population  was 
largely  representative  of  those  states.  In  fact,  all  the 
states  except  Louisiana  have  in  one  form  or  another 
adopted  the  common  law.  The  United  States  as  a 
nation  has  no  law  that  is  not  embodied  in  the  consti- 
tution, treaties  or  laws  enacted  by  congress. 


CHAPTER  III 

STATUTES 

Sec.  Sec. 

23.  Statutes  as  legal  sources.  27.     Public  and  private  statutes. 

24.  Constitutions.  28.     Interpretation    of    statutes. 

25.  Validity  of  statutes.  29.     Statutes    the    most    impor- 

26.  Retroactive  statutes.  tant  of  all  legal  sources. 

§  23.  Statutes  as  legal  sources. — A  statute  is  that 
legal  source  of  the  law  which  consists  in  the  declara- 
tion of  legal  rules  by  the  properly  constituted  authori- 
ties. The  authority  to  declare  such  rules  is  generally 
known  as  legislative  power.  In  the  United  States  it  is 
vested  in  the  congress,  the  legislatures  and  the  mu- 
nicipal councils  of  the  federal,  state  and  city  govern- 
ments respectively.  In  the  latter  case  the  rules  are 
generally  known  as  ordinances.  These  statutes  are 
interpreted,  applied  and  enforced  by  the  courts  of  the 
state.  In  an  abstract  sense,  the  principles  and  rules 
laid  down  by  the  courts  in  the  exercise  of  this  func- 
tion constitute  the  law,  while  the  statutes  themselves 
are  the  sources  of  the  law. 

§  24.  Constitutions. — We  come  now  to  inquire  as 
to  the  manner  in  which  the  supreme  power  of  the 
state  prescribes  the  rules  of  civil  conduct,  as  they  are 
embodied  in  the  statutes.  The  constitution  of  the 
nation,  or  of  the  state,  is  the  direct  and  imperative 
expression  of  the  will  of  the  people.  Legislatures 
and  courts  are  under  the  constitution,  and  are  created 
by  it  or  by  its  authority.  This  paramount  written 
law,   the   Constitution   of  the  United   States,   can  only 

21 


22  ELEMENTARY   LAW  [§  25 

be  amended  by  a  vote  of  three-fourths  of  all  the 
states  of  the  Union.  The  constitutions  of  the  several 
states  may  be  amended  in  such  manner  as  is  provided 
in  the  constitutions  themselves.  Like  statutes,  consti- 
tutions are  legal  sources  of  the  law. 

§  25.  Validity  of  statutes. — The  powers  of  con- 
gress are  fixed  by  the  constitution,  as  it  is  interpreted 
by  the  Supreme  Court.  If  the  power  to  legislate  on 
a  subject  is  conceded  to  congress,  the  Supreme  Court 
wall  not  inquire  into  the  policy  of  a  law,  or  the  mo- 
tives, which  led  to  its  enactment,  or  the  manner  in 
which  it  was  enacted.  It  is  only  when  the  law  vio- 
lates a  provision  of  the  constitution  that  the  court 
by  its  judgment  pronounces  it  null  and  void.  Courts 
of  justice  should  bring  every  law  to  the  test  of  the 
constitution,  first  of  the  United  States  and  then  of 
their  own  state,  if  it  be  a  state  statute,  as  the  para- 
mount and  supreme  law,  to  which  every  inferior  power 
must  conform.  As  the  statutes  enacted  by  congress 
and  by  the  state  legislature  must  be  brought  to  the 
test  of  the  constitution,  so  the  ordinances  of  towns  and 
cities,  which  are  the  creatures  of  legislative  power, 
must  be  brought  to  the  test  of  the  laws  or  charters  by 
virtue  of  which  they  exist.  Statutes  enacted  by  con- 
gress are  in  force  from  and  after  their  passage,  unless 
the  time  of  the  taking  effect  of  the  law  is  postponed 
to  a  later  date  by  the  act  itself.  It  would  be  mani- 
festly unjust  to  enact  statutes  without  providing  some 
means  of  publishing  them,  so  in  civilized  nations  legis- 
lative enactments  which  have  the  force  of  laws  are 
published  by  authority.  In  some  states  of  the  Union, 
general  statutes  are  not  in  force  until  they  are  printed 
and  distributed  to  every  county  in  the  state.  In  some 
states  if  in  the  body  of  the  act  it  is  declared  that  an 


26]  STATUTES  23 


emergency  exists  for  the  immediate  taking  effect  of  a 
statute,  it  is  in  force  from  and  after  its  passage. 

It  is  a  rule  of  decision  which  the  courts  recognize, 
that  whenever  the  constitutionaHty  of  a  statute  is 
doubtful,  it  will  be  sustained.  No  statute  by  any  fic- 
tion or  relation  shall  have  any  effect  before  it  be  actu- 
ally passed.  And  a  statute  is  not  passed  so  as  to  have 
effect  until  the  legislature  has  given  the  required  num- 
ber of  votes  in  its  favor.  When  the  fact  of  its  receiv- 
ing this  number  of  votes  is  certified  to  the  governor 
or  president  by  the  presiding  officers  of  the  two 
houses,  and  the  executive  signature  and  approval  are 
affixed  thereto,  it  is  in  effect  and  not  before,  unless  in 
exceptional  cases  where  the  legislature  may  re-enact 
a  statute  by  passing  it  over  the  veto  of  the  governor 
or  president,  as  provided  in  the  constitution. 

§  26.  Retroactive  statutes. — It  is  a  maxim  that  a 
legislative  enactment  ought  to  be  prospective  and  not 
retroactive.  A  retroactive  statute  would  partake  in 
its  character  of  the  mischief  of  an  ex  post  facto  law, 
as  to  all  cases  of  crimes  and  penalties;  and  in  cases 
relating  to  contracts  or  property  it  would  militate 
against  every  sound  principle.  A  retrospective  statute 
affecting  and  changing  vested  rights  is  generally  con- 
sidered as  grounded  on  unconstitutional  principles, 
and  consequently  is  void.  But  this  doctrine  does  not 
apply  to  remedial  statutes,  which  may  be  of  a  retro- 
spective nature,  provided  they  do  not  impair  con- 
tracts or  disturb  vested  rights,  and  only  tend  to  con- 
firm rights  already  existing,  by  curing  defects  and 
aiding  in  enforcing  existing  obligations.  Such  stat- 
utes are  held  valid  even  though  operating  in  a  degree 
upon  existing  rights,  as  a  statute  to  confirm  marriages 
defectively   celebrated   or    a   sale    of   lands    defectively 


24  ELEMENTARY    LAW  [§27 

made   or  acknowledged,  and  where  the  right  of  third 
parties  have  not  intervened. 

§  27.  PubHc  and  private  statutes. — Statutes  may- 
be public  or  private.  Public  statutes  usually  relate  to 
the  general  and  public  interests  of  the  country  or  com- 
munity to  which  they  apply  as  distinguished  from  pri- 
vate statutes  which  generally  concern  only  the  particu- 
lar interests  of  certain  individuals.  Public  statutes  bind 
everybody,  private  statutes  do  not  bind  strangers  in 
interest  by  their  provisions.  A  party  to  a  suit  basing 
a  claim  upon  a  private  statute  must  plead  it  specially, 
but  one  who  bases  his  claim  upon  a  public  statute  need 
not  plead  it  at  all. 

§  28.  Interpretation  of  statutes. — After  a  statute  is 
enacted  in  due  form  and  its  constitutionality  is  estab- 
lished or  conceded,  questions  may  arise  as  to  the 
meaning  of  the  statute.  Here  the  duty  of  interpreting 
the  statute  devolves  upon  the  courts,  whenever  in 
an  action  before  them  the  parties  to  the  action  insist 
upon  different  interpretations.  Interpretation  is  the 
art  of  finding  out  the  true  sense  of  any  form  of  words, 
that  is,  the  sense  which  their  author  intended.  And 
here  let  us  note  some  of  the  rules  of  interpretation. 
It  is  not  permitted  to  interpret  what  needs  no  inter- 
pretation. Where  the  intention  of  the  law-making 
power  is  plainly  manifest  from  a  reading  of  the  stat- 
ute, that  intention  should  prevail  over  the  literal  sense 
of  the  terms  used.  The  intention  of  the  lawgiver 
is  to  be  deduced  from  a  view  of  the  whole  and  of 
every  part  of  a  statute  compared  together,  just  as  a 
contract  or  a  will  is  interpreted  and  the  meaning  of 
the  parties  ascertained  by  considering  every  part  of 
the  instrument  under  consideration.     Where  the  words 


§  28]  STATUTES  25 

are  not  explicit,  the  intention  is  to  be  collected  from 
the  context,  from  the  occasion  and  necessity  of  the 
statute,  from  the  mischief  felt,  and  the  object  and 
remedy  in  view;  and  the  intention  is  to  be  taken 
according  to  what  is  consonant  to  reason.  The  words 
of  a  statute,  if  of  common  use,  are  to  be  taken  in 
their  plain,  obvious  and  ordinary  sense.  If  technical 
words  are  used  they  are  to  be  taken  in  a  technical 
sense,  unless  it  clearly  appears  from  the  context  or 
other  parts  of  the  law  that  the  words  were  intended 
to  be  applied  in  a  different  sense.  If  the  technical 
meaning  of  terms  is  in  doubt  or  disputed,  the  court 
may  call  to  its  aid  those  whose  calling  has  made 
them  acquainted  or  familiar  with  the  meaning  of  such 
words.  Statutes  should  be  interpreted  according  to 
the  natural  and  obvious  import  of  the  language  with- 
out resorting  to  subtle  or  forced  constructions.  All 
the  statutes  of  the  same  legislature  relating  to  the 
same  subject  are  to  be  taken  together,  for  they  are 
considered  as  having  one  object  in  view,  and  as  act- 
ing on  one  system.  So,  v/henever  it  is  clear  that  a 
power  is  given  by  the  statute,  the  court  will  construe 
it  as  implying  the  right  to  make  it  effective.  It  is 
a  rule  in  some,  but  not  all  of  the  states,  that  statutes 
enacted  in  derogation  of  the  common  law  are  to  be 
strictly  construed.  Remedial  statutes  are  to  be  liber- 
ally construed.  Where  a  literal  construction  would 
violate  the  legislative  intention,  it  will  not  be  adhered 
to.  A  saving  clause  or  proviso  repugnant  to  the  body 
of  the  statute  is  void.  Where  a  statute  contains  a 
word  whose  meaning  is  known  to  the  common  law, 
that  meaning  will  be  adopted.  In  construing  a  doubt- 
ful statute,  the  preamble  and  title  may  be  consulted. 
Long-continued   practice    may    affect    the    construction 


26  ELEMENTARY   LAW  [§  29 

of  a  Statute,  and  the  contemporaneous  construction  of 
a  statute  is  of  high  authority. 

Penal  statutes  are  to  be  strictly  construed.  Bec- 
caria  says:  "Penal  laws  should  be  so  plain  that  no 
judge  should  be  tempted  to  interpret  them.  There  is 
nothing  more  dangerous  than  the  axiom,  'the  spirit 
of  the  law  is  to  be  considered.'  "  If  the  legislature 
has  not  spoken  plainly  in  such  cases,  it  is  contended 
that  there  is  no  law.  It  is  better  thus  than  to  allow 
judicial  legislation  concerning  the  lives  and  liberties 
of  the  subject.  The  disorders  that  may  arise  from  a 
rigorous  observance  of  the  letter  of  the  penal  laws 
are  not  to  be  compared  with  those  produced  by  the 
interpretation  of  them.  Statutes  against  frauds  are 
liberally  construed,  and  the  reason  is  that  they  deprive 
no  man  of  his  right.  They  inflict  no  punishment; 
they  simply  prevent  a  wrongdoer  from  taking  or  keep- 
ing what  he  seeks  or  holds  by  fraud. 

The  common  law  gives  place  to  a  statute,  and  an 
old  statute  gives  place  to  a  new  one.  AVhere  the  pro- 
visions of  a  new  statute  are  repugnant  to  the  provi- 
sions of  an  earlier  statute,  the  earlier  is  said  to  be 
repealed  by  implication,  the  later  statute  being  the 
more  recent  expression  of  legislative  intention.  Re- 
peals by  implication  are  not  favored.  Statutes  limiting 
the  powers  of  future  legislatures  are  void.  A  legis- 
lature can  not  enact  an  irrepealable  statute  unless  it 
is  in  the  form  of  a  contract — such  as  a  charter,  under 
which  rights  have  become  vested.  Ordinarily  the  re- 
peal of  a  repealing  statute  revives  the  statute  which 
had  been  repealed.  Some  states  have  by  law  abolished 
this  rule. 

§  29.  Statutes  the  most  important  of  all  legal 
sources. — This    is    true    for    several    reasons.      In    the 


§  29]  STATUTES  27 

first  place  it  is  only  through  statutes  that  existing 
laws  can  be  abrogated.  Precedent  and  custom  can 
only  establish  new  law  where  none  before  existed. 
They  can  only  provide  rules  to  fill  up  the  gaps  in  the 
legal  system.  By  statutes,  however,  new  rules  may 
not  only  be  established,  but  old  ones  abolished.  As 
new  conditions  require  changed  laws,  these  changes 
are  achieved  only  through  legislation.  For  example, 
where  states  find  common-law  pleading  too  antiquated 
to  be  useful  and  effective,  they  replace  it  by  adopting 
statutory  rules,  known  as  codes.  So  where  the  com- 
mon-law disability  of  married  women  was  found  to  be 
unpopular  and  unwise  it  was  eliminated  by  legislative 
enactment.  Since  most  important  laws  of  today  re- 
quire changes  or  alteration  in  the  established  legal 
rules,  legislation  is  becoming  of  increasing  importance. 

The  second  reason  for  the  great  importance  of 
legislation  is  that  it  anticipates  the  cases  before  they 
arise  and  may  deal  comprehensibly  with  all  the  phases 
of  the  question  involved,  while  precedent  can  not 
produce  a  legal  rule  until  a  case  for  its  application 
actually  arises  and  then  it  must  be  limited  to  the 
bare  necessities  of  the  individual  case,  for  it  is  a  rule 
of  precedent  that  the  courts  must  not  lay  down  new 
principles  of  law  except  such  as  are  necessary  to  the 
decision  of  the  case.  If  the  decision  goes  beyond 
these  narrow  limits,  it  is  but  mere  dicta.  The  result 
is  that  precedent  creates  law  by  piecemeal,  at  different 
times  and  through  different  judges  and,  therefore, 
that  such  law  is  likely  to  be  fragmentary  and  unor- 
ganized. 

The  final  reason  for  the  modern  importance  of  leg- 
islation is  that  it  makes  possible  a  careful  division  of 
labor  in  the  formation  of  new  legal  principles.  This 
division   of   labor   is    especially   necessary   in    much    of 


28  KLICMliNTAUV    LAW  [§  29 

what  is  known  as  modern  social  legislation.  For  ex- 
ample, to  establish  a  set  of  legal  rules  adequately 
dealing  with  the  problem  of  Workmen's  Compensa- 
tion requires  an  expert,  technical  knowledge  of  the 
details  of  modern  industry,  of  dangerous  machinery 
and  methods  of  its  safeguarding,  of  industrial  diseases, 
their  causes  and  their  cures,  and  numerous  otlier 
questions  which  are  involved  and  which  can  be  se- 
cured only  through  the  co-operation  of  expert  investi- 
gators in  the  different  subjects.  Obviously  such  a 
law  can .  be  effectively  and  scientifically  formulated 
only  by  a  large  deliberative  body  whose  members 
represent  the  different  points  of  view  of  modern  life, 
and  where  the  machinery  of  modern  investigation  and 
research  is  made  available.  For  these  reasons  legisla- 
tion is  the  most  powerful,  the  most  important  and 
the   most  effective  source  of  modern  law. 


CHAPTER  IV 

CUSTOM  AND   PRECEDENT 

Sec.  Sec. 

30.  Origin  and  nature  of  gen-       33.     Particular   customs. 

eral  customs.  34.     Judicial  precedent  is  a  legal 

31.  General    customs    as    legal  source  of  law. 

sources  of  the  law.  35.     Declaratory     and     original 

32.  Decreasing    importance    of  precedents. 

custom  as  a  legal  source.       36.     Importance    of    precedents. 

§  30.     Origin    and    nature    of    general    customs. — 

Customs  are  either  general  or  particular.  General 
customs  form  one  of  the  legal  sources  of  the  common 
law.  It  is  a  matter  of  historical  observation  that 
long  before  any  supreme  political  authority  has  come 
into  being  a  series  of  practical  rules  determine  the 
main  relations  of  family  life,  the  conditions  of  owner- 
ship, the  punishment  of  the  more  violent  forms  of 
moral  wrongdoing,  and  the  adjustment  of  contracts. 
The  mode  in  which  such  rules  are  formulated  seems 
to  be  the  following:  A  spontaneous  practice  is  first 
follow^ed,  and  if  good  and  useful,  is  generally  copied 
over  and  over  again,  the  more  so  as  habit  and  asso- 
ciation always  render  the  imitation  of  an  old  and 
familiar  practice  easier  than  inventing  a  new  and  un- 
tried one.  It  is  the  peculiarity  of  the  class  of  cus- 
toms which  are  the  true  germs  of  future  law  that 
they  are  being  constantly  brought  to  mind  and  tested 
by  application  to  actions.  Customs  prescribing  the 
formalities  and  conditions  of  marriage  are  brought 
into  distinct  consciousness  on  the  formation  of  every 
fresh  family.  The  incessantly  active  vicissitudes  of 
birth   and   death   in   every   community   call   for   an   un- 

^29 


30  ELEMENTARY   LAW  [§31 

intermittent  series  of  decisions  upon  the  competing 
claims  of  survivors  in  matters  of  ownership,  and  upon 
the  responsibiHties  of  those  who  may  already  be 
called  "personal  representatives"  in  matters  of  con- 
tract. The  main  machinery  for  the  conversion  of 
desultory  and  uncertain  customs  into  fixed  rules  are 
the  decisions  which  are  constantly  demanded  for  the 
purpose  of  ascertaining  the  nature  and  extent  of  an 
alleged  custom.  These  decisions  may  be  made  by  a 
casually  selected  arbitrator,  a  village  council,  or  any 
man  or  body  of  men  agreed  upon,  or  any  person  who 
may  have  authority  to  hear  the  matter.  The  grounds 
of  decision  may  be  personal  mercy,  expediency  or 
analogy.  Such  decisions  tend  to  crystalize  and  solidify 
until  they  frequently  become  as  certain  and  definite 
as  the  rules  of  established  law. 

§  31.  General  customs  as  legal  sources  of  the  law. 
— A  general  custom  is  defined  as  being  such  a  usage 
as  by  common  consent  and  uniform  practice  has  be- 
come the  law  of  the  place,  or  of  the  subject-matter 
to  which  it  relates.  A  particular  custom  is  distin- 
guished from  a  general  custom  in  this,  that  the  latter 
is  universal,  while  the  former  is  particular  to  this  or 
that  place  or  group.  It  is  distinguished  from  usage 
in  this,  that  custom  is  the  rule  of  which  usage  is 
the  legal  evidence.  The  difference  between  prescrip- 
tion and  custom  is  that  while  prescription  is  the 
making  of  a  right,  custom  is  the  making  of  a  law. 
General  customs  are  such  as  constitute  a  legal  source 
of  the  common  law  and  extend  to  the  whole  country; 
particular  customs  are  those  which  are  confined  to  a 
particular  district  or  to  the  members  of  a  particular 
class.  The  existence  of  the  former  is  to  be  deter- 
mined by  the  court,  of  the  latter  by  the  jury.    General 


§  33]  CUSTOM    AND    PRECEDENT  31 

customs  are  said  to  be  legal  sources  of  the  law:  (a) 
where  they  have  existed  time  out  of  mind;  (b)  have 
been  uninterrupted;  (c)  have  been  peaceably  enjoyed 
or  acquiesced  in;  (d)  are  reasonable;  (e)  are  certain; 
(f)  are  considered  compulsory  by  those  to  whom  they 
apply;  (g)  are  consistent  with  statute  law  and  the 
established  rules  of  the  common  law.  Such  customs 
as  possess  the  foregoing  requisites,  being  legal  sources 
of  the  law,  like  statutes  create  rights  and  duties  which 
the  courts  will  recognize  and  apply  in  their  adminis- 
tration of  justice.  In  other  words,  binding  authority 
is  attributed  to  those  customs  meeting  the  specified 
requirements. 

§  32.  Decreasing  importance  of  custom  as  a  legal 
source. — The  legal  requirements  of  a  valid  custom 
are  so  exacting  that  its  law-creative  efficacy  is  almost 
eliminated  today.  Few  customs  are  found  that  con- 
form to  the  requirements.  Originally  custom  was 
probably  the  most  important  and  fruitful  source  of 
law,  but  the  great  number  of  precedents  and  the  rap- 
idly increasing  bulk  of  legislation  necessarily  restricts 
custom   as   a   legal   source   within   very   narrow  limits. 

§  33.  Particular  customs. — Particular  or  special 
customs,  applying  only  to  particular  callings  or  places, 
do  not  constitute  legal  sources.  They  are  given  a  certain 
legal  effect,  however,  by  being  incorporated  into  agree- 
ments between  parties  who  have  dealt  with  reference 
to  them.  Usages,  which  are  plainly  repugnant  to  well- 
known  rules  of  law,  are  not  recognized  and  can  not  be 
proved.  Customs  of  trade  are  proved  to  show  the  inten- 
tion of  parties  in  making  contracts.  But  customs  of 
trade  can  not  be  enforced  against  a  stranger  who  is 
ignorant    of    them.      For    instance,    a    merchant    can    not 


32  .         EI^EMENTARY    LAW  [§  34 

charge  a  customer  interest  on  a  running  account  because 
it  is  his  custom,  unless  the  customer  knows  it.  Nor  will 
a  custom  be  allowed  to  control  the  interpretation  of  a 
written  instrument  in  opposition  to  its  express  terms,  and 
courts  are  always  averse  to  holding  customs  good  where 
they  vary  the  common-law  obligations  of  the  parties. 

§  34.     Judicial  precedent  as  a  legal  source  of  law. 

■ — A  precedent  is  a  rule  of  law  laid  down  by  a  court  in 
a  judicial  controversy  as  a  basis  of  its  decision.  Accord- 
ing to  the  old  orthodox  legal  theory  all  common  law  had 
its  legal  source  in  custom.  Precedents  were  declared  to 
be  nothing  more  than  the  evidences  of  customary  law. 
While  many  courts  still  do  lip  service  to  this  theory  they 
do  not  nor  have  they  ever  observed  it  in  practice.  As 
Salmond  says,  it  "was  never  much  better  than  an 
admitted  fiction."  The  practice  is  to  regard  judicial 
precedents  as  rules  of  law  merely  because  they  are 
precedents  and  wholly  regardless  of  whether  they  are 
grounded  on  established  customs  or  the  mere  discretion 
of  the  courts.  Regardless  of  the  legal  theory,  therefore, 
judicial  precedent  is  in  fact  a  legal  source  of  law- 

§  35.  Declaratory  and  original  precedents. — Sal- 
mond classifies  precedents  as  declarator}^  and  original. 
"A  declaratory  precedent  is  one  which  is  merely  the  appli- 
cation of  an  already  existing  rule  of  law;  an  original 
precedent  is  one  which  creates  and  applies  a  new  rule. 
In  the  former  case  the  rule  is  applied  because  it  is  already 
law;  in  the  latter  case  it  is  law  for  the  future  because  it 
is  now  applied."  It  is  the  latter  class  of  precedents  that 
is  most  important  for  it  is  through  them  that  the  courts 
exercise  their  law-creative  functions.  No  legal  system 
can  be  so  complete  as  to  anticipate  all  the  possible  con- 
flicts   of    interests   whose   peaceful    and   just    solution    re- 


§361  CUSTOM    AiND    I'KJiCJiDIiNT  33 


b 


quires  judicial  settlement.  When  such  cases  come  before 
the  courts  fur  adjudication  they  decide  it  as  best  they  can, 
laying  down  as  a  basis  for  their  decision  some  rule 
generally  based  upon  common  sense,  practical  expediency 
or  justice.  This  precedent  becomes  a  rule  of  law  to  be 
observed  in  future  cases.  This  is  what  is  known  as 
judicial  legislation.  Two  important  distinctions  must  be 
made  between  this  and  legislation  in  its  ordinary  sense, 
and  these  are  that  judicial  legislation  is  always  retroactive-, 
and  that  it  should  never  be  resorted  to  except  when  made 
necessary  to  the  decision  of  an  actual  controversy  by  the 
absence  of  any  statute,  custom  or  precedent  applicable 
to  the  pending  case. 

§  36.  Importance  of  precedents. — What  is  com- 
mon law  is  declared  by  the  courts,  and  what  the  courts 
have  declared  to  be  the  law  is  found  in  their  records 
and  published  decisions.  When  a  rule  of  law  has  once 
been  declared  it  ought  not  to  be  disturbed  unless  by  a 
court  of  appeal  or  review,  and  never  by  the  same  court, 
unless  upon  very  urgent  reasons  and  upon  a  clear  mani- 
festation of  error;  any  other  practice  leaves  the  citizen 
in  a  perplexing  uncertainty  as  to  the  law.  A  precedent, 
even  where  it  appears  to  be  flatly  unreasonable  and  un- 
just, may  and  should  be  followed  if  it  has  been  acquiesced 
in  for  a  long  period,  or  if  it  has  become  a  rule  of  prop- 
erty, so  that  titles  have  been  acquired  in  reliance  upon  it, 
and  vested  rights  will  be  disturbed  by  overruling  it.  In 
such  a  case  the  better  course  is  to  leave  the  correction  of 
the  error  with  the  legislature  which  can  so  shape  its 
action  as  to  make  it  prospective  only,  and  thus  prevent 
the  injurious  consequences  that  must  follow  from  judi- 
cially declaring  the  previous  decision  unfounded. 


3 — Elem.  Law. 


CHAPTER  V 
SOCIAL   UTILITY    OF   THE   LAW 

* 

Sec.  Sec. 

37.  Some    basis    of    regulating      40.     Courts     of    justice     versus 

conduct    necessary    in  courts  of  law. 

modern  society.  41.     Certainty    frequently    more 

38.  The     basis     of     regulating  important  than  justice. 

conduct  to  be  one  that  is  42.     Scientific    character   of    the 

general  and  equal  in  ap-  law. 

plication.  43.     Law    a    protection    against 

39.  The    state's   basis   of  regu-  error  and  corruption. 

lating  conduct  to  be  one       44.     The  defects  of  the  law. 
that  guarantees  certainty 
and  uniformity. 

§  37.  Some  basis  of  regulating  conduct  necessary 
in  modem  society. — In  every  organized  society  real 
or  apparent  conflicts  between  the  interests  of  its  mem- 
bers are  always  found.  As  society  becomes  more  complex 
these  conflicts  are  more  frequent  and  intricate.  To  adjust 
these  disagreements  justly  and  peacefully  is  one  of  the 
primary  purposes  of  the  state.  To  afford  an  effective 
basis  for  the  adjustment  is  the  function  of  the  law.  Law 
implies  a  set  of  established  principles  which  the  state  will 
impose  upon  its  members  through  its  judicial  power.  To 
consider  the  social  utihty  of  tlie  law  we  must  consider 
the  effectiveness  of  legal  principles  both  as  the  basis  for 
the  determination  of  individual  and  social  conflicts  and 
for  the  effective  co-operation  necessary  to  modern  society. 
This  can  best  be  done  by  considering  the  alternatives  that 
are  available  to  the  organized  groups.  These  alternatives 
are  two  in  number.  The  first  is  to  invest  tlie  authorities 
with  supreme  and  arbitrary  power  of  determining  con- 
troversies according  to  individual  whims  or  caprice.     The 

34 


§  38]  SOCIAL   UTIUTY   OF   THE   I.AW  35 

second  is  to  invest  the  courts  with  authority  to  decide 
each  incHvidual  case  according  to  the  dictates  of  right, 
natural  justice  or  expediency,  unrestrained  by  legal  rule, 
precept  or  precedent.  The  first  alternative  may  be  dis- 
missed without  serious  consideration  as  such  a  system 
would  only  be  possible  in  a  semicivilized  country  and 
under  an  absolute  despotism.  The  second  alternative  de- 
serves more  serious  consideration  and  is  frequently  advo- 
cated to  a  more  or  less  degree  by  persons  interested  in 
reform.  There  are  two  questions  then  to  be  considered. 
The  first  must  inquire  as  to  what  principles  are  necessary 
to  the  proper  administration  of  justice.  The  second  ques- 
tion involves  the  determination  of  whether  legal  rules  on 
the  one  hand  or  the  ideals  of  right,  natural  justice  or 
expediency  on  the  other,  will  best  conform  to  those 
principles  found  to  be  necessary  to  the  administration  of 
justice. 

§  38.  The  basis  of  regulating  conduct  to  be  one 
that  is  general  and  equal  in  application. — If  conflict- 
ing interests  between  individuals  and  groups  are  to  be 
adjusted  effectively  and  peacefully  by  the  state  then  it 
would  seem  that  there  are  certain  general  principles  that 
should  be  observed.  Among  these  principles  are  generality 
and  equality.  The  absence  of  these  in  any  civilized  state 
would  result  in  inevitable  revolt.  To  enforce  the  con- 
tracts of  A  without  enforcing  those  of  B  or  to  for- 
bid one  to  carry  on  a  business  dangerous  to  the  public 
health  but  permit  it  to  another  would  be  intolerable. 
One's  sense  of  natural  justice  revolts  against  the  very 
thought  of  such  a  system.  This  does  not  mean  that  there 
must  be  one  rule  for  all  men  and  all  conditions,  but  that 
all  men  of  like  status  and  under  like  conditions  and  in 
like  situations  must  receive  equal  consideration  and  treat- 
ment.     That   the   state   should   require   duties   of   married 


36  ELEMENTARY   LAW  [§  39 

men  different  from  those  required  of  bachelors  does  not 
violate  the  principles  of  generality  or  equality,  but  t(j 
compel  one  husband  to  observe  certain  duties  to  his  wife 
and  allow  another  under  like  conditions  to  violate  them 
with  impunity  would  constitute  the  grossest  violation. 
The  necessity  of  the  observation  of  these  principles  is 
especially  clear  in  the  case  of  property  rights.  Unless 
the  conflicts  over  property  rights  between  individuals  and 
between  the  individuals  and  the  state  are  adjusted  in  con- 
formity with  these  ideals  there  can  be  but  little  peace  and 
progress  in  society.  If  the  state  under  the  forms  of 
taxation  takes  a  portion  of  A's  property  without  touch- 
ing that  of  B ;  if  it  will  protect  from  the  attacks  of 
others  the  property  of  C,  but  leave  the  property  of 
D  subject  to  confiscation;  if.  in  other  words,  the  rights 
of  property  are  not  equally  and  generally  enjoyed 
throughout  the  realm  the  incentives  to  productive  labor 
will  be  diminished,  while  private  conflicts  and  private 
vengeance  over  disputed  rights  will  disturb  the  public 
peace.  The  lack  of  thrift,  enterprise  and  industry  among 
the  natives  of  countries  where  these  principles  do  not 
obtain  bear  eloquent  testimony  to  their  social  value. 

§  39.  The  state's  basis  of  regulating  conduct  to 
be  one  that  guarantees  certainty  and  uniformity. — 
The  requirement  of  equality  can  not  be  met  except 
by  the  observation  of  other  important  principles  and 
they  are  certainty  or  definiteness  and  uniformity. 
There  can  be  no  equal  protection  of  individuals  or 
property  unless  the  principles  in  accordance  with  which 
the  protection  is  accorded  are  definite  and  uniform.  Dif- 
ferent judges  would  differ  between  different  cases  unless 
thev  have  for  their  aid  and  guidance  certain  principles 
so  definite  and  uniform  as  to  be  capable  of  scientific  ap- 
plication.    The  same  rights  of  property  come  before  the 


§  39]  SOCIAL,   UTILITY   OF   THE   LAW 


37 


courts  for  adjudication  in  so  many  different  and  perplex- 
ing ways  and  surrounded  by  such  different  circumstances 
and  the  different  judges  differ  so  in  temperament  and 
point  of  view,  that  to  protect  equally  the  property  rights 
involved  in  each  case  there  is  required  a  definite  and  uni- 
form standard  by  which  the  courts  may  be  guided  in 
their  decisions.  Otherwise,  the  state  could  not  deal  with 
each  case  in  accordance  with  a  general  ideal  or  rule, 
and  the  equality  demanded  by  one's  sense  of  justice  would 
be  impossible. 

Certainty  and  uniformity  are  not  only  necessary  as  a 
means  to  secure  generality  and  equality  in  the  administra- 
tion of  justice  but  also  as  a  necessary  condition  to  modern 
social  and  industrial  development.  All  great  movements 
require  complex  schemes  of  co-operation,  minute  division 
of  labor,  the  investment  of  great  amounts  of  capital, 
and  cover  extended  periods  of  time.  The  promoter,  the 
capitalist  and  the  laborer  to  a  certain  extent  pool  their 
interests  in  this  common  effort  and  frequently  must  wait 
for  years  to  secure  the  full  profits  of  the  undertaking. 
They  put  their  labor  and  capital  and  effort  into  these 
great  enterprises  and  receive  in  return  certain  rights. 
They  are  willing  to  do  this  because  they  have  confidence 
that  these  rights  will  be  enforced  by  the  state,  and  that 
they  will  be  enforced  with  such  definiteness  and  uni- 
formity that  when  their  rights  mature  they  will  be  of  the 
same  nature  and  content  that  they  were  when  the  under- 
taking was  begun.  People  will  not  invest  their  capital 
or  effort  in  any  undertaking  unless  amply  assured  that 
the  rights  so  acquired  will  be  enforced  by  the  state  with 
a  certainty  and  uniformity  that  is  unquestioned.  It  is  as 
Sir  Frederick  Pollock  says:  "The  demand  for  certainty 
becomes  more  exacting  as  men's  affairs  become  more 
complex,  and  the  aid  of  the  courts  is  more  frequently 
sought.      Trade    and    traffic    in    their    increasing   volume, 


38  ELEMENTARY   I.AW  [§40 

Speed  and  variety  of  movement,  raise  new  questions  at 
every  turn,  and  men  expect  not  only  to  get  their  differ- 
ences settled  for  the  moment,  but  to  /lave  solutions  which 
will  prevent  the  same  difficulties  from  giving  trouble 
again." 

§  40.     Courts    of   justice    versus    courts    of   law. — 
From  the  preceding  sections  it  appears  that  the  effective 
and  peaceful  administration  of  justice  can  be  obtained  only 
by  observing  certain  principles  of  equality  and  generality 
upon  the  one  hand  and  of  certainty  and  uniformity  upon  the 
other.  We  are  now  ready  to  consider  which  of  the  two — the 
administration   of  justice   according  to   law   or   according 
to   the  dictates   of   right,    natural   justice   and   expediency 
will  best  observe  the  foregoing  principles.     A  casual  con- 
sideration will  demonstrate  the  inefficiency  of  the  latter. 
What  is  right,  just,  or  expedient  in  a  given  case  depends 
so  much  upon  the  personal  point  of  view,   the  tempera- 
ment of  the  presiding  judge,  his  particular  philosophy  of 
life,  his  education  and  environment,  that  it  is  impossible 
that  justice  should  be  administered  equally  and  generally 
by    different    judges    if    no    other    criterion    be    furnished 
them.     There  would  be  as  many  different  principles  and 
kinds  of  justice  as  there  are  judges  in  the  realm.     There 
could  be  no  greater  generality  and  equality  in  the  admin- 
istration of  justice  than  there  would  be  in  the  tempera- 
ment,   individual    philosophy,    and    training    and    environ- 
ment of  the  courts.     Uniformity  and  certainty  would  be 
impossible.     Whether  or  not  contracts  would  be  enforced 
would  depend  not  upon  their  compliance  with  certain  and 
definite  established  principles,  but  whether  in  the  opinion 
of  the  court  concerned  it  would   do  justice  between  the 
parties.     People  would  indeed  be  slow  to  risk  their  labor 
and  capital  upon  a  guess  as  to  what  some   future  judge 
might  consider  just  and  right.     The  first  English  courts 


§  40]  SOCIAI,   UTILITY   OF   THIi   LAW  39 

were  established  as  courts  of  justice,  but  the  practical 
considerations  above  mentioned  drove  them  into  the  role 
of  courts  of  law.  When  equity  courts  were  established 
in  England  they  were  not  bound  by  any  principles  of  law, 
but  they  could  not  withstand  the  constant  pressure  to 
yield  to  general  principles  of  equality  and  certainty  which 
they  could  observe  only  by  substituting  rules  of  law  for 
principles  of  abstract  justice.  The  law  adopted  by  the 
courts  generally  represents  the  courts'  ideas  of  justice 
and  expediency,  but  when  once  adopted  they  then  become 
the  law  to  be  followed  scrupulously  thereafter  unless 
legally  repealed,  even  though  later  judges  may  differ  as 
to  their  wisdom  and  rightness.  The  public  may  then  rely 
upon  them.  Law-abiding  citizens  may  adjust  their  busi- 
ness and  conduct  accordingly.  The  complicated  co- 
operation necessitated  by  modern  conditions  is  thus 
afforded  a  basis  for  effective  operation.  Great  under- 
takings would  be  impossible  if  the  protection  of  the  rights 
of  the  various  parties  to  the  undertaking  were  to  be 
made  dependent  upon  the  theories  of  abstract  justice  held 
by  some  judge,  rather  than  upon  their  compliance  with 
the  established  rules  of  law. 

Professor  Pound  aptly  sums  up  the  situation  as  fol- 
lows :  "Division  of  labor  can  not  exist  without  restraints 
on  the  liberty  of  each  in  the  interest  of  the  like  liberties 
of  all.  But  these  limitations,  to  achieve  their  purpose, 
must  be  regulated  definitely,  and,  as  we  have  seen,  that 
means  for  practical  purposes,  that  they  must  be  regulated 
by  reason.  In  other  words,  they  require  law.  They  re- 
quire that  certainty  in  definition  and  application  involved 
in  the  administration  of  justice  according  to  law.  Ac- 
cordingly, the  whole  course  of  development  of  society  has 
shown  a  movement  away  from  justice  without  law  and 
toward  the  working  out  of  a  scientific  and  complete  body 
of  rules  for  the  administration  of  justice." 


40  EI^EMENTARY   LAW  [§  41 

§  41.  Certainty  frequently  more  important  than 
justice. — Another  objection  to  courts  of  justice  as  dis- 
tinguished from  courts  of  law  is  that  frequently  the 
question  of  certainty  and  definiteness  is  the  all-important 
consideration.  There  are  many  very  important  and  valu- 
able rules  of  law  that  have  no  basis  in  considerations  of 
abstract  justice.  Laws  requiring  persons  to  drive  on  the 
right-hand  side  of  the  road  or  prescribing  the  forms  of 
certain  instruments  are  of  that  character.  The  important 
thing  is  not  that  they  drive  on  the  right  side  or  the  left 
side,  but  that  all  observe  a  uniform  rule  for  their  mutual 
convenience.  These  and  all  other  rules  may  work  hard- 
ship in  individual  cases,  but  it  is  argued  that  the  benefits 
of  having  definite  and  uniform  rules  of  conduct  far  more 
than  offset  the  occasional  injustice  that  may  be  done. 
Obviously  these  benefits  could  only  be  enjoyed  where 
justice  is  administered  by  courts  of  law. 

§  42.  Scientific  character  of  the  law. — To  admin- 
ister justice  to  all  persons  with  equality  and  certainty 
requires  not  only  a  body  of  law  for  the  guidance  of  the 
courts,  but  requires  a  body  of  law  developed  with 
scientific  accuracy  and  precision.  The  function  of  the 
modern  court  is  to  apply  the  legal  rules  to  the  facts 
material  to  the  controversy.  The  facts  are  frequently 
so  complicated  that  this  function  becomes  exceedingly 
delicate  and  requires  great  powers  of  analysis,  discrim- 
ination and  logical  deduction.  It  furthermore  requires 
the  development  of  clear  and  definite  technique  of  expres- 
sion and  use  of  language.  This  is  true  because  it  is 
only  through  language  that  the  principles  of  the  law  can 
be  applied.  If  they  are  to  be  applied  with  that  certainty 
and  definiteness  that  justice  and  expediency  require  then 
the  language  which  is  the  instrument  of  the  application 
must    be    capable    of    clear    and    discriminating    use.      A 


§  43]  SOCIAL   UTILITY  OF  THE   LAW  41 

technical  terminology  is  just  as  necessary  to  the  science 
of  law  as  it  is  to  the  science  of  medicine  or  mathematics. 
The  keen  analysis,  discrimination  and  logical  deduction 
necessary  to  the  consistent  application  of  legal  principles 
to  complicated  situations  requires  a  technique  of  language 
that  is  equally  definite,  keen  and  refined.  One  of  the 
worst  evils  of  American  legislation  is  that  the  drafting 
of  the  laws  is  done  by  men  who  have  not  mastered  the 
technique  of  legal  expression  and  who  can  not,  therefore, 
formulate  principles  capable  of  exact  and  consistent  appli- 
cation. It  is  very  common  to  find  the  same  word  or 
expression  used  with  several  different  meanings  in  the 
same  statute.  This  would  not  happen  if  statutes  were 
drawn  up  by  men  trained  in  legal  reasoning  and  expres- 
sion. A  great  many  of  the  intelligent  criticisms  leveled 
at  the  courts  and  the  legal  system  have  their  justification 
in  decisions  and  rules  resulting  from  a  failure  to  recog- 
nize the  scientific  character  of  the  law.  It  is  because  of 
its  technical  character  that  the  administration  of  law  has 
been  confided  to  the  legal  profession,  and  consequently 
upon  them  rests  the  burden  of  its  scientific  perfection. 
At  this  point  it  is  important  to  keep  clear  the  distinction 
between  the  science  of  law  and  the  science  of  legislation. 
The  latter  science  has  to  do  with  the  framing  of  new 
laws  and  the  changing  of  old  ones,  and  involves  not  only 
the  science  of  the  law,  but  also  the  fields  of  social  science 
and  philosophy.  Its  concern  is  with  the  question  of  what 
the  law  ought  to  be.  As  distinguished  from  this  the 
science  of  law  is  concerned  with  what  the  law  is  and  its 
accurate  and  faithful  application. 

§  43.  Law  a  protection  against  error  and  corrup- 
tion.— In  the  administration  of  justice  a  system  of 
law  will  afford  very  effective  safeguards  against  corrup- 
tion and  error.     If,  in  the  decision  of  controversies,  the 


42  ELEMENTARY   LAW  [§43 

court  has  no  other  criterion  for  its  decision  than  justice 
and  expedience,  there  is  no  definite  standard  by  which  his 
decisions  may  be  tested.  The  uncertainty  and  infinite 
variety  of  honest  opinion  as  to  what  might  be  just  or 
expedient  in  many  given  cases  furnish  a  cloak  under 
which  the  most  corrupt  and  pernicious  motives  may  be 
hidden.  If,  however,  the  court  is  under  obhgations  to 
decide  the  case  according  to  the  law,  developed  and 
expressed  with  scientific  accuracy  and  certainty,  then 
there  is  a  standard  by  which  the  court's  decision  may  be 
tested.  Intelligent  public  opinion  is  thus  given  a  chance 
to  function  effectively.  Should  the  judge  depart  from  the 
established  principles  of  law  his  decision  may  be  attacked 
and  his  motives  impugned.  The  knowledge  that  decisions 
must  be  justified  by  showing  their  conformity  to  definite 
and  fixed  standards  instead  of  by  some  plausible  theory 
of  abstract  justice  has  been  found  to  have  a  most  power- 
ful influence  upon  the  court.  The  possibilities  of 
prejudice,  partiality  or  corruption  are  largely  eliminated 
through  the  substitution  of  the  strict  rules  of  legal  science 
for  the  personal  discretion  of  the  judge.  The  same 
process  also  tends  to  eliminate  errors  of  individual  judg- 
ment in  judicial  administration.  The  law  represents  the 
thought,  experience  and  conscience  of  society  past  and 
present.  Its  principles  have  been  tested  out  in  the  school 
of  experience  and  have  received  the  approval  of  the 
state.  While  they  may  not  always  be  ideally  just  and 
expedient  yet  experience  seems  to  indicate  that  they 
afford  surer  and  safer  guides  than  the  individual  judg- 
ment of  the  court  The  force  of  this  will  be  apparent 
upon  considering  the  difficulties  under  which  the  courts 
must  of  necessity  perform  their  tasks.  They  are  greatly 
overworked.  Most  of  them  are  behind  in  their  dockets, 
some  of  them  being  three  or  four  years  in  arrears.  They 
are   compelled   to   give   them   hasty   consideration.      They 


§  44]  SOCIAL,   UTILITY   OF   THE   LAW  43 

must  pass  upon  every  kind  of  questions  from  those 
involving  the  scientific  principles  of  chemical  combination 
in  an  infringement  suit  to  the  solution  of  that  vexing 
problem  as  to  what  constitutes  a  fair  rate  to  be  charged 
by  public  service  companies.  These  come  before  the  court 
in  rapid  succession  and  any  attempt  to  solve  each  ques- 
tion on  its  individual  merits  would  involve  the  court  in 
interminable  delays  or  result  in  hastily  formed  opinions 
incompatible  with  the  just  and  careful  disposition  of 
difficult  and  important  questions.  A  definitely  formulated 
legal  system  seems  to  furnish  the  only  relief  from  these 
alternatives  by  affording  a  scientific  method  for  decision, 
with  which  the  courts  should  be  thoroughly   familiar. 

§44.  The  defects  of  the  law. — While  it  is  gener- 
ally admitted  among  the  students  of  society  that  law 
offers  the  best  means  for  the  effective  administration  of 
justice,  it  must  not  be  supposed  that  law  is  an  unmixed 
benefit.  There  are  several  defects  in  the  law  that  are 
serious  and  deserve  consideration.  These  defects  are 
found  in  the  rigidity,  conservatism  and  needless  com- 
plexity of  the  legal  system.  The  first  defect  is  inherent 
in  the  idea  of  law,  while  the  other  two  are  only  tenden- 
cies which  to  a  more  or  less  degree  may  be  controlled. 
By  rigidity  is  meant  the  generality  of  the  law  which 
ignores  many  details.  For  instance,  the  law  says  that 
contracts  containing  certain  specified  elements  shall  be  en- 
forced. While  in  the  long  run  this  will  work  justice,  yet 
there  may  be  individual  contracts  complying  with  these 
elements  yet  which,  because  of  certain  other  elements,  are 
unjust.  In  spite  of  this  the  law  can  only  take  account  of 
the  legal  elements  and  will  therefore  occasionally  be  com- 
pelled to  enforce  an  unjust  contract.  Such  difficulties  can 
not  be  avoided.  A  general  rule  of  law  is  only  possible 
through  a  process  of  abstraction.     Abstraction  means  that 


44  ELEMENTARY    LAW  [§44 

certain  elements  must  be  ignored.  These  elements  so 
ignored  are  generally  the  incidental  and  unimportant  ones, 
but  human  knowledge  can  never  be  sure  but  that  some 
case  may  arise  where  these  same  elements  may  be 
material  and  consequent  injustice  result.  These  are  possi- 
bilities the  law  must  always  face. 

By  conservatism  is  meant  the  failure  of  the  law  to 
keep  abreast  of  the  current  opinion  and  problems  of  the 
day.  Ideas  of  justice  and  expedience  change  and  new 
problems  arise  with  the  passing  years.  Law  does  not 
anticipate  these  new  conditions  and  consequently  it  is 
frequently  out  of  harmony  with  the  times.  This  evil 
may,  however,  be  greatly  alleviated  by  scientific  legisla- 
tion. The  needless  complexity  of  the  law  makes  its 
understanding  and  application  very  difficult  and  leads  to 
another  evil,  that  of  formalism.  There  is  a  tendency  to 
elaborate  excessively  the  law  by  drawing  subtle  and  use- 
less distinctions.  To  a  certain  extent  this  elaboration  and 
distinction  is  necessary,  but  it  may  be  overdone.  The 
law  may  be  made  so  intricate  and  complex  that  not  even 
the  profession  can  deal  with  it  effectively,  and  such 
occasionally  is  the  case.  Such  a  development  is  un- 
scientific. The  result  is  formalism,  in  which  the  aim  of 
the  law  is  overlooked  and  it  is  made  an  end  in  itself. 
So  much  stress  is  laid  upon  the  form  of  the  law  that  its 
substance  and  purpose  are  forgotten.  These  evils  may  be 
ameliorated  possibly  by  codification  in  some  cases,  but 
generally  the  remedy  is  to  be  found  in  emphasizing  the 
scientific  character  of  law  and  the  ultimate  social  purpose 
which  it  must  serve. 


PART   II 


THE  LAW  OF  TORTS 

CHAPTER  VI 
TORTS   IN   GENERAL 

Sec.  Sec. 

45.  Classification  of  the  law.  48.     Torts     distinguished     from 

46.  Definition  of  a  tort.  breaches  of  contract. 

47.  Torts     distinguished    from  49.     Theory  of  the  law  of  torts. 

crimes. 

§  45.  Classification  of  the  law. — Classifications  of 
the  law  are  of  two  kinds :  analytical  and  practical.  Its 
division  into  public  and  private,  civil  and  criminal,  or 
substantive  and  adjective  law  are  examples  of  the  former. 
According  to  Salmond  public  law  is  composed  of  those 
rules  dealing  with  the  "structure,  powers,  rights  and 
activities  of  the  state,"  while  private  law  includes  "all 
the  residue  of  legal  principles."  Civil  law  has  to  do  with 
the  enforcement  and  protection  of  rights  as  distinguished 
from  the  criminal  law  which  is  concerned  with  the  punish- 
ment of  wrongs.  Those  legal  principles  which  deal  with 
the  content  and  creation  of  rights  constitute  substantive 
law  in  contradistinction  to  adjective  law  which  governs 
the  methods  of  their  enforcement.  Such  classifications, 
while  important  to  a  philosophical  study  of  the  law,  are 
for  the  most  part  too  general  and  abstract  to  be  of  great 
practical  value  either  to  the  practitioner  or  the  casual 
student.  For  practical  purposes  "the  field  of  law  is  ordi- 
narilv  divided  bv  teachers  and  writers  into  forty  or  fifty 

45 


46  ELEMENTARY    hAW  [§46 

subjects,  each  consisting  of  a  group  of  closely  related 
topics  treated  separately  from  other  groups  more  from 
practical  than  from  theoretical  considerations,  though 
there  is  usually  some  fundamental  colierence  between  the 
topics  in  each  group,"  Among  the  more  important 
and  general  subjects  in  this  classification  are  torts, 
criminal  law,  property,  contracts,  partnership,  corpora- 
tions, agency,  master  and  servant,  persons  and  domes- 
tic relations,  constitutional  law,  administrative  law, 
practice,  procedure,  and  courts  and  their  jurisdictions. 
In  the  main  this  volume  follows  this  classification,  and 
one  of  the  most  important  fields  of  law  thus  classified 
is  the  law  of  torts. 

§  46.  Definition  of  a  tort. — Salmond  defines  a  tort 
"as  a  civil  wrong,  for  which  the  remedy  is  an  action  for 
damages,  and  which  is  not  solely  the  breach  of  a  contract 
or  the  breach  of  a  trust  or  other  merely  equitable  obliga- 
tion." The  word  "tort"  is  from  the  French  and  means 
literally  a  wrong.  In  law,  however,  it  has  a  much  more 
restricted  meaning,  being  confined  to  a  portion  of  those 
wrongs  for  which  action  for  damages  will  lie.  The 
most  important  rights  protected  by  this  branch  of  the  law 
are  those  of  personal  security,  of  property,  of  reputation 
and  of  social  and  business  relations. 

§  47.  Torts  distinguished  from  crimes. — A  crime 
is  defined  as  a  wrong  against  the  state  for  which  the 
offender  may  be  punished  in  a  criminal  prosecution. 
Murder,  larceny,  robbery  and  arson  are  examples  of 
crimes.  Torts  are  wrongs  against  individuals  for  which 
the  remedy  is  an  action  to  recover  the  damages  suffered 
from  the  offending  party.  The  same  act  may  be  both  a 
tort  and  a  crime,  as  for  example,  where  A  steals  the 
watch  of  B,   A  may  be  prosecuted  by  the  state   for  the 


§  49]  TORTS  IN   GENERAL, 


47 


theft  and  B  may  sue  him  for  the  value  of  the  watch.  If 
A  commits  assault  and  battery  upon  B,  A  may  be  pun- 
ished by  the  state  and  B  may  sue  him  for  the  damages 
inflicted.  All  crimes  are  not  torts,  however,  as  for 
example  an  attempt  to  commit  suicide  is  a  crime  in  some 
states,  but  there  is  no  tort  since  no  other  party  suffers. 
So  conversely,  all  torts  are  not  crimes.  Many  wrongs  to 
individuals  are  not  of  sufficiently  great  public  importance 
for  the  state  to  make  them  crimes.  If  A  carelessly  drives 
his  wagon  down  the  street  and  as  a  result  injures  B,  A 
is  guilty  of  the  tort  of  negligence  for  which  B  can  recover 
damages  to  the  extent  of  his  injury.  Unless  A's  negli- 
gence is  so  gross,  however,  as  to  amount  to  a  reckless 
or  wanton  disregard  of  the  safety  of  others,  it  does  not 
constitute  a  crime. 

§  48.  Torts  distinguished  from  breaches  of  con- 
tract.— A  breach  of  contract  is  a  violation  of  an  agree- 
ment by  one  of  the  parties  thereto.  A  tort  on  the  other 
hand  is  the  violation  of  a  right  imposed  by  law  without 
regard  to  any  agreement  or  consent.  The  remedy  for  a 
breach  of  contract  is  generally  an  action  for  damages, 
but  its  distinguishing  feature  is  that  it  is  based  on  a 
contractual  agreement.  If  A  wants  to  sue  B  for  damages 
for  not  delivering  his  chattel  to  A,  A  must  prove  that  B 
had  agreed  so  to  do  and  had  failed  to  carry  out  the 
agreement.  But  if  A  wants  to  sue  B  for  damages  for 
trespass  upon  A's  property  it  will  not  be  necessary  for  A 
to  prove  any  agreement  whatever  for  the  law  imposes 
upon  everyone  the  duty  to  respect  the  rights  of  property 
and  the  violation  of  that  duty  is  a  tort. 

§49.  Theory  of  the  law  of  torts. — Originally  the 
law  was  based  upon  the  maxim  that  "he  that  is  damaged 
ought  to  be  recompensed"  regardless  of  whether  the  party 


48  ELEMENTARY   LAW  [§  49 

causing  the  damage  was  to  blame.  The  modern  tendency, 
however,  is  to  give  the  injured  party  a  right  to  action 
only  where  the  defendant  is  in  some  way  culpable. 
Professor  Clark  sums  up  the  tendency  as  follows :  "This 
culpability  may  be  shown  by  proving  that  the  defendant 
intended  the  act  which  damaged  the  plaintiff,  or  that  he 
might  have  avoided  damaging  the  plaintiff  by  using  the 
proper  amount  of  care,  or  that  he  was  engaged  in  an 
unlawful  act  or  an  extra-hazardous  act  at  the  time  the 
plaintiff'  suffered  the  injury.  The  early  law  gave  protec- 
tion only  against  the  simpler  and  more  direct  violations 
of  the  plaintiff's  rights.  The  tendency,  however,  is  toward 
extending  the  protection  to  violations  which  are  less 
direct  and  more  difficult  to  trace  to  the  defendant;  so 
that  the  goal  of  the  law  of  torts  is  protection  against  any 
unjustifiable  infringements  of  one's  rights,  or,  as  it  is 
expressed  in  the  maxim,  'there  is  no  wrong  without  a 
remedy.'  "  The  various  classes  of  torts  will  be  treated 
in  succeeding  chapters. 


CHAPTER  VII 

SECURITY  OF  THE  PERSON 

Sec.  Sec. 

50.  The  right  to  life.  52.     Remedies. 

51.  When  life  may  be  lawfully       53.     Recovery  for  injuries  caus- 

taken.  ing  death. 

§  50.  The  right  to  life. — Everyone  has  a  legal 
right  to  the  security  of  his  person  and,  stated  generally, 
may  treat  any  interference  with  his  person  as  a  wrong. 
The  right  to  life  is  the  first  and  greatest  of  all  rights. 
No  one  can  lawfully  consent  to  the  taking  of  his  life  by 
another,  and  no  one  can  lawfully  destroy  his  own  life. 
It  seems  superfluous  to  say  that  whoever  takes  the  life 
of  another  person  is  guilty  of  a  legal  wrong.  But  it  is 
stated,  for  the  purpose  of  indicating  certain  exceptions, 
the  reasons  for  which  are  clear  and  well  settled. 

§  51.  When  life  may  be  lawfully  taken. — The 
sovereign  power  may  lawfully  take  the  life  of  a  person, 
by  due  process  of  law,  as  a  punishment   for  crime. 

In  time  of  war  or  under  martial  law,  it  is  justifiable 
or  excusable  to  take  the  life:  (1)  Of  enemies  under 
arms.  (2)  Of  noncombatants,  who,  by  their  fault, 
expose  themselves  to  the  dangers  of  the  conflict.  (3) 
Of  any  persons  who  are  guilty  of  grave  offenses  against 
the  rules  of  war,  such  as  spies,  sleeping  sentinels, 
deserters. 

Where  an  alternative  exists,  as  between  two  lives  hav- 
ing equal  rights,  it  being  impossible  that  both  should  live 
and  it  being  necessary  to  make  a  choice  in  order  to  save 
either,  it  will  be  excusable  to  take  one  or  the  other  life. 
A — Elem.  Law.  49 


50  ELEMENTARY   LAW  [§52 

Where  for  self -protection  or  for  the  due  enforcement 
of  law  it  becomes  necessary  to  take  life,  such  taking  is 
justifiable. 

The  unintentional  taking  of  life  will  be  deemed  an 
inevitable  accident  and  not  a  legal  wrong,  unless  the  act 
which  results  in  such  loss  of  life  be  for  some  other 
reason  an  unlawful  act. 

§  52.  Remedies. — It  is  obvious,  from  the  nature 
of  the  case,  that  for  an  unlawful  taking  of  life  there  can 
be  no  redress  in  favor  of  the  person  whose  life  is  taken. 
And  no  preventive  remedy  is  given  that  is  effective.  It 
is  true,  there  is  punishment  by  criminal  prosecution,  but 
that  is  deterrent  only.  There  is  also  the  proceeding  by 
surety  of  the  peace,  but  one  who  is  not  deterred  by  fear 
of  indictment  will  have  little  restraint  through  a  bond. 
The  law  does,  however,  give  civil  redress  for  the  taking 
of  life,  in  favor  of  persons  standing  in  certain  relations 
toward  the  deceased. 

§  53.  Recovery  for  injuries  causing  death. — At 
common  law  there  was  no  right  of  action  in  any  one  for 
the  death  of  a  human  being.  It  was  deemed  repugnant 
to  the  law  to  attempt  any  estimate  in  a  pecuniary  way 
of  the  value  of  human  life.  For  loss  suffered  between 
the  date  of  an  injury  and  the  death,  the  person  injured 
had  a  right  of  action,  and  any  one  entitled  to  his  services 
might  sue.  But  for  the  loss  by  the  death  there  was  no 
remedy.  To  supply  this  defect  in  the  law,  statutes  have 
been  passed.  In  this  country  they  are  substantially  the 
same  as  the  English  statute  known  as  Lord  Campbell's 
Act.  It  is  provided  that  whenever  the  death  of  a  human 
being  is  caused  by  the  wrongful  act  or  default  of  another, 
the  personal  representative  may  maintain  an  action  against 
the  wrongdoer,  and  the  damages  recovered  shall  inure  to 


I  53]  SECURITY  OF  THE  PERSON  51 

certain  persons  having  an  interest  in  the  Hfe.  While  the 
various  statutes  do  not  entirely  agree  as  to  v^ho  shall  be 
the  beneficiaries,  it  is  uniformly  the  law  that  unless  some 
one  or  more  persons  of  the  classes  named  survive  the 
deceased,  nothing  can  be  recovered.  The  beneficiary  must 
have  some  pecuniary  interest  in  the  life  of  the  deceased, 
or  reasonable  expectation  of  benefit,  and  the  damages 
recovered  can  not  exceed  such  interest  or  benefit.  The 
statutes  limit  the  amount  recoverable,  in  some  states  to 
$5,000,  in  others  to  $10,000. 


CHAPTER  Vni 

ASSAULT  AND  BATTERY 

Sec.  Sec. 

54.  Assault  and  battery  in  gen-  57.  The    intent    of   the   wrong- 

eral.  doer. 

55.  Tiie    ability    and    intent    to  58.  Consent  of  the  one  injured. 

injure.  59.  Justitication  for  battery. 

56.  Battery  defined.  60.  Self-defense. 

61.  The  remedies. 

§  54.  Assault  and  battery  in  general. — For  cor- 
poral injuries  less  than  the  taking  of  human  life,  the 
law  gives  redress  to  the  person  injured.  When  the  injury 
is  direct  and  intentional,  it  is  called  an  assault  and  battery. 
It  is  not  essential,  in  order  to  constitute  a  wrong,  that 
the  wrongdoer  shall  have  fully  carried  out  his  intention, 
nor  that  any  actual  damage  shall  result.  An  attempted 
injury  may  be  an  assault,  and.  though  there  be  no  damage 
actually  sufTered,  the  law  presumes  that  there  was  some 
damage. 

An  assault  is  an  attempt  with  unlawful  force  to  inflict 
bodily  injury  upon  another,  accompanied  with  real  or 
apparent  ability  to  give  effect  to  the  attempt,  if  not 
prevented. 

§  55.  The  ability  and  intent  to  injure. — In  a  civil 
suit  for  assault,  if  the  defendant  had  apparent  present 
ability  and  intent  to  injure,  he  is  liable,  regardless  of 
whether  the  plaintifT  believed  there  was  such  ability  and 
intent.  And  even  though  the  defendant  did  not  have 
actual  present  ability,  or  did  not  have  an  intent  to  injure, 
he  is  nevertheless  liable,  if  his  conduct  was  such  as 
reasonably  created  in  plaintiff  the  belief  that  such  ability 

52 


§  59]  ASSAULT   AND   BATTERY  53 

and  intent  existed.  However  threatening  an  act  would 
otherwise  appear  to  be,  it  is  not  an  assault,  if  from  the 
words  or  conduct  accompanying  the  act  it  is  apparent 
that  no  injury  will  be  done.  Mere  words  or  threats  do 
not  of  themselves  constitute  an  assault. 

§  56.  Battery  defined. — Battery  is  any  touching 
of  another  person  with  intent  to  injure  or  in  an  angry, 
revengeful,  rude,  insolent  or  hostile  manner,  and  without 
his  lawful  consent. 

§  57.  The  intent  of  the  wrongdoer. — For  civil  lia- 
bility, it  is  not  essential  that  there  shall  have  been  an 
actual  intent  to  injure  the  plaintiff.  It  is  sufficient  if 
the  act  itself  was  unlawful  or  if  it  was  intended  to 
injure  some  person  and  unintentionally  injured  the  plain- 
tiff. The  essence  of  the  offense  is  that  the  defendant 
shall  have  been  intentionally  guilty  of  a  wrong,  and  that 
plaintiff's  person  shall  have  been  unlawfully  touched. 

§  58.  Consent  of  the  one  injured. — If  the  plaintiff 
consented  to  the  defendant's  act,  the  defendant  is  not 
liable  for  assault  and  battery,  unless :  ( 1 )  The  act  be 
a  breach  of  the  peace.  (2)  The  plaintiff  be  legally  in- 
capable of  giving  consent.  (3)  The  consent  be  obtained 
by  fraud.      (4)   Force  be  used  in  excess  of  the  consent. 

§  59.  Justification  for  battery, — In  time  of  war, 
or  under  martial  law,  acts  that  would  be  justifiable  though 
they  result  in  taking  life,  will  of  course  be  justifiable  if 
they  result  in  any  less  degree  of  injury. 

Upon  motives  of  public  policy,  wherever  the  law  can 
not  be  otherwise  adequately  enforced,  it  is  justifiable  to 
use  so  much  force  as  is  necessary.  An  officer  with 
authority  to  arrest  may  therefore  use  reasonable  force  to 


54  EI^EMENTARY   LAW  [§  60 

effect  the  arrest.  For  a  like  reason  any  one,  officer  or 
private  individual,  under  certain  conditions,  may  use 
reasonable  force  to  prevent  a  breach  of  the  peace,  or, 
after  a  felony  has  been  committed,  to  apprehend  the 
felon. 

For  purposes  of  correction  and  punishment  a  reason- 
able degree  of  chastisement  is  justifiable  by  a  parent  upon 
his  child,  by  a  teacher  upon  the  pupil,  by  a  jailer  upon 
his  prisoner,  and  by  a  shipmaster  upon  his  crew,  and 
under  some  circumstances  upon  his  passenger.  An  act 
that  would  otherwise  be  assault  and  battery  may  be 
justifiable  where  it  is  necessarily  done  for  the  purpose  of 
saving  the  life,  either  of  the  person  injured  or  of  another. 

Whenever  the  force  used  upon  a  justifiable  occasion 
is  of  a  degree  that  is  unreasonable  or  excessive  it  becomes 
itself  a  wrong,  and  the  person  so  using  excessive  force 
becomes  liable  for  the  excess,  and  in  some  states  also 
loses  the  right  to  complain  of  the  violence  against  him. 

§  60.  Self-defense. — Any  one  may  lawfully  use 
force  to  protect  himself  against  the  unlawful  force  of 
others.  But  only  so  much  force  is  justifiable  as  is  reason- 
ably necessary  for  protection.  The  degree  of  force  that 
may  be  lawfully  used  by  way  of  self-defense  varies  with 
the  nature  of  the  attack.  If  the  person  attacked  has  the 
belief  upon  reasonable  grounds  that  his  life  is  in  danger, 
or  that  he  will  receive  great  bodily  harm,  he  will  be 
excused,  though  he  kill  his  adversary.  But  out  of  regard 
for  human  life,  the  law  does  not  permit  one  to  kill  his 
assailant  unless  there  be  such  belief  upon  reasonable 
grounds.  One  is  bound  to  retreat,  if  possible,  and  to 
confine  his  defense  within  reasonable  limits.  So,  one 
attacked  by  another  with  his  fists,  can  not  ordinarily 
justify  the  killing  of  his  assailant  at  once  with  a  knife 
or   other   deadly   weapon.      The   law   does   not,   however, 


§  61]  ASSAULT  AND   BATTERY  55 

require  one  to  retreat  when  in  his  own  house.  His  house 
is  said  to  be  his  castle,  and  he  may  stand,  repelhng  any 
force  with  force,  even  though  it  becomes  necessary  to 
take  the  life  of  the  assailant  to  repel  the  assault.  Provo- 
cation by  mere  words  is  never  an  assault,  and  therefore 
will  never  excuse  the  use  of  force  in  retaliation. 

The  right  of  self-defense  includes  the  right  of  one  to 
protect  persons  standing  in  the  following  relations, 
husband  and  wife,  parent  or  person  in  loco  parentis  and 
child,  members  of  the  same  family  and  master  and 
servant.  The  right  of  self-defense  also  exists  in  favor 
of  one  for  the  protection  of  his  possessions  and  the  pos- 
sessions of  those  holding  the  above  relations  toward  him. 
In  order  that  a  person  may  avail  himself  of  the  plea  of 
self-defense,  it  is  generally  necessary  that  he  shall  have 
been  free  from  fault  in  provoking  the  attack,  for  the 
law  will  not  permit  the  right  of  self-defense  to  be  used 
as  a  cloak  for  wrongdoing. 

§  61.  The  remedies. — The  civil  remedy  for  as- 
sault, or  for  assault  and  battery,  is  an  action  for  dam- 
ages. The  injured  person  is  entitled  to  recover  damages 
for  all  the  natural  results  of  the  injury  that  have  been 
or  probably  will  be  suffered.  Both  mental  and  physical 
suffering,  or  impairment  of  faculties,  the  sense  of  shame 
and  humiliation,  the  loss  of  social  respect,  and  actual  and 
direct  pecuniary  loss,  are  elements  to  be  considered  in 
assessing  the  damages.  Where  the  offense  is  done  with 
malice,  or  with  deliberate  intent  to  injure,  exemplary  or 
punitive  damages  may  be  recovered,  unless  the  act  is 
also  punishable  criminally,  in  which  case  such  damages 
can  not  be  recovered  in  a  civil  action. 


CHAPTER  IX 

FALSE   IMPRISONMENT 

Sec.  Sec. 

62.  Definition.  66.     Lawful   restraint  under  le- 

63.  The  detention  or  restraint.  gal  process. 

64.  The  unlawfulness  of  the  re-  67.     Officers. 

straint.  68.     Remedy. 

65.  Lawful     restraint     without       69.     Privilege  from  arrest. 

legal  process.  70.     Remedy  for  arrest  of  priv- 

ileged persons. 

§  62.  Definition. — It  is  every  one's  right  to  enjoy 
the  freedom  of  his  person,  to  go  and  come  whenever  and 
wherever  he  may  lawfully  do  so.  Any  interference  with 
this  freedom  may  be  a  legal  wrong.  To  compel  forcibly 
one  to  go  from  a  place  or  to  prevent  him  forcibly  from 
coming  to  a  place  will  generally  amount  to  and  be  action- 
able as  an  assault,  battery,  nuisance  or  trespass,  but 
such  an  act  may  not,  however,  constitute  an  imprison- 
ment. 

False  imprisonment  is  imposing  by  force  or  threats 
an  unlawful  and  definite  restraint  upon  one's  freedom  of 
locomotion,  or  detaining  one  without  legal  authority. 

§  63.  The  detention  or  restraint. — There  need  not 
be  an  actual  touching  of  the  person.  If  the  person  sub- 
mits upon  command  or  threats,  and  believes  he  is  under 
restraint,  it  is  a  sufficient  imprisonment.  The  restraint 
must,  however,  be  complete.  If  one  is  prevented  from 
moving  in  one  direction  only  it  is  not  imprisonment,  nor 
is  it  if  he  is  prevented  from  moving  in  every  direction 
except  one.  So  long  as  there  is  any  reasonable  path 
known  to  be  left  open  and  free  to  him,  a  person  can  not 

56 


§  65]  FALSE    IMPRISONMENT  57 

be  said  to  be  imprisoned.     But  it  is  immaterial  whether 
the  boundaries  of  the  imprisonment  be  large  or  small. 

§  64.  The  unlawfulness  of  the  restraint. — To  con- 
stitute a  legal  wrong  it  is  necessary  that  the  imprisonment 
be  unlawful.  For  determining  what  restraints  are  unlaw- 
ful, the  shorter  inquiry  is,  what  restraints  does  the  law 
allow?     All  others  will  be  legal  wrongs. 

Lawful  restraint  may  be,  (1)  without  legal  process; 
(2)   with  legal  process.. 

§  65.  Lawful  restraint  without  legal  process. — In 
some  cases  the  law  deems  it  less  productive  of  mischief 
to  allow  a  person  by  his  own  act  to  restrain  another 
than  to  require  him  to  resort  to  legal  proceedings.  The 
reason  lies  in  the  ineffectiveness  of  legal  proceedings 
under  the  circumstances,  and  in  the  necessity  for  prompt 
action.  Order  and  peace  are  better  subserved  by  the 
individual  act  than  by  the  tardy  redress  of  legal  proceed- 
ings. 

A  parent  may  impose  restraint  upon  his  child. 

A  teacher  acting  in  loco  parentis  may  restrain  a  pupil, 
subject,  however,  to  the  control  of  the  parent. 

A  guardian  of  the  person  of  a  ward  may  exercise 
restraint. 

A  shipmaster  may  restrain  members  of  his  crew  or 
passengers  to  preserve  discipline  and  order. 

Military  officers,  in  time  of  war,  may  of  course  re- 
strain the  captured  enemy,  spies  and  any  persons  infring- 
ing the  rules  of  war,  or  suspected  of  doing  so.  In  time 
of  peace  they  may  impose  restraint  upon  those  who  are 
under  military  control,  for  military  offenses,  but  they 
may  not  restrain  others. 

One  who  is  bail   for  another  may  generally,  by   fol- 


58  ELEMENTARY    LAW  [§  66 

lowing  the  procedure  of  the  statute,  himself  arrest  and 
restrain  his  principal. 

Any  person  may  restrain  another  who  is  dangerous 
from  insanity  or  intoxication,  but  is  bound  without  delay 
to  surrender  the  dangerous  person  to  the  officers  of  the 
law. 

A  peace  officer  may  without  a  warrant  arrest  and 
restrain  a  person:  (1)  To  prevent  breach  of  the  peace 
in  his  view.  (2)  For  a  felony  or  misdemeanor  if  com- 
mitted in  his  view,  but  not  far  a  mere  misdemeanor 
committed  out  of  his  view.  (3)  For  a  past  felony,  pro- 
vided he  has  reasonable  grounds  for  believing  the  arrested 
person  committed  a  felony.  And  he  is  justifiable,  even 
though  in  fact  the  arrested  person  is  innocent,  or  even 
though  in  fact  no  felony  had  been  committed. 

A  private  person  may  without  legal  proceedings  arrest 
and  restrain  another:  (1)  To  prevent  breach  of  the 
peace  in  his  view.  (2)  For  a  felony,  whether  past  or  in 
his  view,  provided  a  felony  has  been  actually  committed, 
and  he  has  reasonable  grounds  for  believing  the  person 
arrested  to  be  guilty.  He  makes  the  arrest  at  his  peril, 
however,  and  if  no  felony  has  been  committed,  he  will 
be  held  liable. 

Where  the  arrest  and  restraint  is  for  a  felony  or 
misdemeanor,  the  person  arrested  must  be  taken  before  a 
magistrate  within  a  reasonable  time,  or  the  imprisonment 
can  not  be  justified.  In  all  cases,  the  restraint  exercised 
must  be  reasonable,  and  if  it  becomes  excessive,  the  per- 
son restraining  is  guilty  of  a  legal  wrong.  It  is,  however, 
doubted  whether  a  parent  can  ever  be  civilly  liable  for 
damages  to  his  child,  on  account  of  an  excessive  restraint, 
although  he  may  be  criminally  liable  therefor. 

§  66.  Lawful  restraint  under  legal  process. — After 
judgment  of  insanity,  a  warrant  in  proper  form  is  a  justi- 


§  67]  FALSE    IMPRISONMENT  59 

fication  for  the  restraint  of  the  insane  person,  even  after 
the  person  be  in  fact  restored  to  sanity.  Judges  within 
the  Hmits  of  their  jurisdiction  are  never  civilly  liable  for 
causing  the  restraint  of  a  person,  even  where  they  are 
guilty  of  error,  or  abuse  of  their  power.  This  rule  rests 
upon  public  policy,  it  being  deemed  safer  that  judges  shall 
be  free  from  any  fear  of  private  suit,  and  that  redress 
be  left  wholly  to  the  state.  But  where  judges  act  wholly 
without  jurisdiction,  they  are  civilly  liable  to  the  person 
restrained,  if  they  have  acted  knowingly  and  maliciously. 
Courts  of  limited  jurisdiction  are  held  to  stricter 
accountability,  and  are  bound  to  know  and  not  to  exceed 
the  limits  of  their  jurisdiction.  So  that  while  judges  of 
general  jurisdiction,  acting  without  or  beyond  jurisdiction, 
are  not  liable  so  long  as  they  act  in  good  faith,  judges 
of  limited  and  inferior  jurisdiction  are  liable  for  acts  in 
excess  of  jurisdiction,  whether  in  good  faith  or  not. 

§  67.  Officers. — Officers  who  make  arrests  upon 
legal  process  must,  in  order  to  justify  such  arrests,  be 
able  to  show:  (1)  That  the  process  was  issued  by  a 
court  having  jurisdiction  of  such  cases.  (2)  That  there 
is  nothing  on  the  face  of  the  process,  apprising  the  officer 
that  no  authority  existed  in  the  particular  case.  (3)  That 
he  acted  reasonably,  promptly  and  moderately,  in  the  exe- 
cution of  the  process. 

All  persons,  whether  parties  or  attorneys,  who  procure 
the  issuance  of  illegal  process,  under  which  arrest  is  made, 
are  liable  to  the  person  arrested.  But  the  liability  will  not 
be  on  the  ground  of  false  imprisonment,  except  where  the 
process  procured  is  extrajudicial,  or  in  other  words  is 
not  a  valid  process.  If  the  process  is  valid,  there  is  no 
liability  for  false  imprisonment,  even  though  the  process 
be  procured  by  a  malicious  and  false  statement  of  the 
facts.     The  remedy  in  the  latter  case  is  by  an  action  far 


60  KLEMENTARY   LAW  [§68 

malicious  prosecution  or  abuse  of  process,  which  will 
be  considered  hereafter, 

§  68.  Remedy. — The  person  arrested  may  main- 
tain an  action  for  damages  against  the  wrongdoer,  and 
is  entitled  to  recover  all  proximate  damages.  He  may 
recover  compensatory  damages,  and  as  elements  of  such 
damages  the  juiy  may  consider  all  expenses  reasonably 
incurred  to  procure  discharge,  including  reasonable 
attorney's  fees  in  the  former  proceeding,  loss  of  time 
and  employment,  loss  by  interruption  of  business,  bodily 
and  mental  suffering,  the  sense  of  shame  and  humiliation, 
the  loss  of  or  injury  to  honor,  reputation  and  social 
position. 

In  addition  to  compensatory  damages,  the  person 
illegally  restrained  may  recover  exemplary  or  punitive 
damages  when  the  act  was  done  maliciously  or  with 
undue  violence.  But  exemplary  damages  can  not  be 
recovered  when  the  act  complained  of  is  punishable 
criminally. 

§  69.  Privilege  from  arrest. — Upon  grounds  of 
public  policy  the  law  declares  persons  under  certain  cir- 
cumstances to  be   free   from   arrest. 

Ambassadors  and  representatives  of  foreign  powers 
are  exempt  from  local  jurisdiction,  not  only  in  civil  but 
criminal  cases,  the  fiction  being  that  they  carry  with  them 
the  territory  and  jurisdiction  of  their  own  countries.  The 
exemption  extends  to  the  family,  secretaries  and  servants 
of  the  foreign  representative.  But  the  privilege  may  be 
waived  and  local  jurisdiction  may  be  submitted  to. 

By  the  Constitution  of  the  United  States  and  of  the 
states,  members  of  the  legislature  are  exempt  from  ar- 
rest, except  for  treason,  felony  or  breach  of  the  peace, 
while, attending  the  sessions  of  the  legislature,  and  for 


§70]  FALSI'    IMPRISON  MKNT  61 

a  reasonable  time  before  and  after,  while  going  to  or 
from  the  same. 

Parties  litigant,  witnesses,  attorneys,  judges,  jurors 
and  other  officers  of  court  are  exempt  from  arrest  on 
civil  process  while  attending  in  court,  and  while  going  to 
and  from  the  same.  In  most  states  voters,  while  going 
to  and  from  the  polls,  are  privileged  from  civil  arrest. 
In  some  states  women  are  privileged  from  civil  arrest. 

A  civil  arrest  is  the  lawful  apprehension  of  a  person 
to  answer  a  demand  in  a  civil  action. 

§  70.     Remedy   for  arrest  of  privileged  persons. — • 

The  privilege  from  arrest  may  always  be  waived  by  the 
privileged  person.  It  follows,  that  the  arrest  is  not 
wrongful  until  the  person  claims  his  privilege  and  applies 
for  his  discharge.  This  he  may  procure  by  application 
to  the  court  issuing  the  process  or  by  writ  of  habeas 
corpus.  In  some  cases  where  the  privilege  is  for  the 
benefit  of  other  persons,  as  in  case  of  witnesses,  any  one 
interested  may  secure  the  discharge,  or  the  court  may  act 
on  its  own  motion. 


CHAPTER  X 

MALICIOUS   PROSECUTION 

Sec.  Sec. 

71.  Elements  of  the  wrong.  75.     Malicious     prosecution     of 

72.  The  malicious  motive.  civil   actions. 

73.  Want  of  probable  cause.  16.     Malicious  abuse  of  process. 

74.  Proceedings  must  have  ter-  11 .     Remedy. 

minated. 

§  71.  Elements  of  the  wrong. — It  is  every  man's 
legal  right  to  be  free  from  any  unjust  legal  proceedings, 
and,  strictly  speaking,  every  suit  or  legal  proceeding  that 
fails  is  an  infringement  of  that  right.  But  it  is  not  every 
unsuccessful  suit  that  will  give  the  person  sued  a  right  to 
recover  damages  therefor.  The  due  enforcement  of  the 
law  requires  that  honest  litigants  shall  not  be  deterred 
by  the  fear  of  liability  for  malicious  prosecution  from 
asserting  their  claims  civilly,  nor  from  the  praiseworthy 
work  of  bringing  offenders  to  justice.  Therefore  the 
wrong  from  unfounded  legal  proceedings  is  through 
motives  of  public  policy  limited  to  such  proceedings  as 
are  instituted  maliciously  and  without  probable  cause 
therefor.  Furthermore,  the  law  does  not  favor  the 
maintenance  of  a  second  action  during  the  pendency  of 
another  in  which  precisely  the  same  questions  are  involved. 
The  proceeding  complained  of  as  a  malicious  prosecution 
may  result  in  a  judgment  against  the  party  charged,  and 
when  such  result  follows,  the  judgment  is  generally  a 
conclusive  adjudication  that  there  was  sufficient  cause 
for  the  proceeding.  The  law  does  not,  therefore,  permit 
an  action  for  malicious  prosecution  until  after  the 
termination    of   the    proceeding    complained    of,    and    this 

62 


§  73]  MALICIOUS    PROSECUTION  63 

termination  must  be  other  than  by  a  vahd  judgment 
against  the  party  charged,  otherwise  it  might  happen  that 
a  prosecuting  witness  would  be  held  liable  in  damages 
for  instituting  a  proceeding  without  probable  cause,  and 
afterward  in  the  proceeding  complained  of  the  criminal 
might  be  convicted  upon  evidence  beyond  a  reasonable 
doubt.  Therefore,  in  order  that  a  plaintiff  may  main- 
tain an  action  for  malicious  prosecution,  he  must  establish 
the  concurrence  of  three  things,  1,  the  malicious  motive; 
2,  the  absence  of  probable  cause;  3,  the  proceeding  must 
have  terminated.  If  he  fails  to  establish  any  one  of 
these  three  elements  his  action  can  not  prevail. 

§  72.  The  malicious  motive. — This  does  not  nec- 
essarily mean  hatred,  ill  will  or  revenge.  By  malice  here 
is  meant  any  direct  or  indirect  motive  of  wrong.  It  may 
be  any  motive  other  than  that  of  simply  bringing  the 
supposed  offender  to  justice.  So,  if  the  object  of 
instituting  criminal  proceedings  be  shown  to  be  to  compel 
a  person  to  pay  a  debt  or  to  surrender  property,  there  is 
malice  in  the  legal  sense.  Malice  may  be  inferred  from 
the  recklessness  or  gross  negligence  of  failing  to  make 
proper  investigation  before  beginning  the  proceeding.  It 
may  be  inferred  from  the  entire  absence  of  probable 
cause,  without  other  evidence;  for  it  is  inconceivable  that 
one  can  act  with  good  faith  in  such  a  case,  unless  he  has 
some  probable  cause.  The  question  of  the  existence  or 
nonexistence  of  malice  is  one  of  fact  for  the  jury, 
although  it  is  the  province  of  the  court  to  decide  whether 
there  is  any  or  sufficient  evidence  of  malice. 

§  73.  Want  of  probable  cause. — Probable  cause  is 
the  apparent  existence  of  such  facts  and  circumstances  a? 
would  excite  the  belief  in  a  reasonable  mind  that  the  per^ 
son  charged  is  guilty.     It  is  essential  that  the  prosecutor 


64  ELKMliNTARV    LAW  [§  73 

shall  have  entertained  an  honest  belief  in  the  guilt. 
Although  there  might  otherwise  be  probable  cause  from 
suspicious  circumstances,  yet  if  the  prosecutor  knew  or 
believed  the  accused  to  be  innocent  he  would  not  have 
probable  cause  for  making  the  charge.  It  matters  not 
that  facts  actually  existed  which  would  amount  to 
probable  cause,  such  facts  must  be  known  to  the  prosecu- 
tor at  the  time  of  the  prosecution  in  order  to  avail  him. 
The  mental  attitude  of  the  prosecutor  is  in  such  case 
one  of  the  facts  and  circumstances  to  be  considered  in 
determining  whether  he  had  probable  cause.  It  is  not 
enough,  however,  that  the  prosecutor  entertained  an 
honest  belief  in  the  guilt  of  the  accused.  Such  belief 
must  have  been  upon  reasonable  grounds,  and  mere  float- 
ing rumors  are  not  generally  considered  a  sufficient 
foundation.  It  makes  no  difference  that  the  accused  was 
in  fact  innocent;  the  question  is  not  as  to  the  innocence 
of  the  accused,  but  whether  there  was  probable  cause 
for  believing  him  to  be  guilty.  Absence  of  probable  cause 
can  not  generally  be  inferred  from  the  mere  fact  that  the 
proceeding  was  actuated  by  ill  will.  There  must  be  other 
evidence.  For,  a  belief  upon  probable  grounds  that  the 
accused  was  guilty  of  offense  would  almost  inevitably 
excite  an  ill  will  toward  him,  and  hence  the  existence 
of  ill  will  is  equally  consistent  with  the  presence  as  with 
the  absence  of  probable  cause.  But  where  the  malice 
consists  in  the  wrongful  use  of  the  legal  proceedings  for 
a  collateral  and  improper  purpose,  it  is  competent  evi- 
dence of  the  absence  of  probable  cause;  for  such  evidence 
would  go  to  the  question  as  to  whether  the  prosecutor 
honestly  believed  the  accused  guilty.  The  fact  that  the 
prosecutor  laid  the  facts  and  circumstances  before  counsel 
learned  in  the  law,  and  acted  upon  the  opinion  given,  is 
competent  evidence,  both  of  the  absence  of  malice  and 
the  existence  of  probable  cause,  but  is  not  conclusive.    In 


5]  MAl.lL'iOLb    I'KOSi'XUTlON  65 


order  to  afford  protection,  there  must  have  been  a  full 
disclosure  made  to  an  attorney  in  regular  practice.  Of 
course,  it  must  have  been  in  good  faith,  for  an  attorney 
and  client  will  not  be  permitted  to  use  such  a  defense  as 
a  cloak  for  their  collusive  wrong. 

A  judgment  of  conviction  in  the  proceeding  com- 
plained of  is  generally  conclusive  evidence  of  the  existence 
of  probable  cause,  even  though  an  appeal  be  taken,  result- 
ing in  a  new  trial  and  subsequent  acquittal.  But  if  the 
conviction  was  secured  by  fraud  or  perjury,  it  will  not  be 
conclusive  evidence. 

An  acquittal  in  the  proceeding  complained  of  is 
competent,  but  not  conclusive  evidence  of  the  absence  of 
probable  cause.  In  defense  to  the  action  for  malicious 
prosecution,  it  may  be  shown  that  the  charge  is  true, 
notwithstanding  the  acquittal.  For,  an  acquittal  may 
have  resulted  from  failure  to  establish  the  charge  by 
evidence  beyond  a  reasonable  doubt,  and  yet  the  evidence 
may  be  sufficient  to  establish  the  charge  by  a  preponder- 
ance. 

§  74.  Proceedings  must  have  terminated. — Gen- 
erally such  termination  must  have  been  otherwise  than 
by  a  judgment  against  the  person  charged,  but  it  need 
not  have  been  by  a  judgment  in  favor  of  the  person 
charged.  It  is  a  sufficient  termination  if  the  grand  jury 
ignores  a  bill,  where  a  person  has  been  bound  over;  or 
if  a  nolle  prosequi  be  entered ;  or  if  an  indictpient  be 
quashed;  or  if  the  accused  be  discharged  from  bail  or 
imprisonment.  All  that  is  necessary  is  that  the  proceed- 
ing shall  have  been  so  disposed  of  that  it  can  not  be 
revived,  and  that  the  prosecutor,  if  he  intends  to  proceed 
further,  must  begin  anew. 

§  75.     Malicious  prosecution  of  civil  actions. — The 

S — Elem.  Law. 


66  ELEMENTARY    LAW  [§76 

action  is  usually  brought  for  the  malicious  prosecution 
of  some  criminal  proceeding.  But  it  is  sometimes  also 
allowed  on  account  of  civil  suits  upon  the  same  principles. 
At  common  law  the  action  was  permitted  for  any 
proceeding,  civil  as  well  as  criminal,  upon  termination  in 
favor  of  the  defendant,  but  when  by  statute  costs  were 
given  to  the  prevailing  party,  the  right  to  maintain  an 
action  for  malicious  prosecution  of  civil  suits  was  limited 
to  such  as  involved  the  arrest  of  the  person,  the  seizure 
of  his  property,  or  other  such  special  injury.  And  this  is 
the  rule  that  prevails  in  many  states, .  among  which  are 
New  Jersey,  Pennsylvania,  Maryland,  Iowa  and  Georgia. 
Other  states  have  followed  the  common  law  as  it 
existed  prior  to  the  statutes  giving  costs;  among  these 
are  New  York,  Indiana,  Vermont,  Connecticut,  Kentucky, 
Kansas,  Illinois  and  Missouri. 

§  76.  Malicious  abuse  of  process. — It  is  not  only 
for  proceedings  maliciously  begun  that  the  law  affords 
redress,  but  also  for  any  process,  either  civil  or  criminal, 
though  lawfully  begun,  if  it  is  made  use  of  for  a  purpose 
not  justified  by  law.  For  example,  a  judgment  may  be 
lawfully  recovered,  but  if  after  payment  of  the  same,  the 
creditor  maliciouslv  cause  execution  to  be  issued  thereon 
and  property  to  be  seized,  this  is  an  abuse  of  process. 
Or,  an  execution  may  be  lawfully  issued,  yet  if  an 
excessive  levy  be  made  thereon  it  is  an  abuse  of  process. 
It  is  generally  necessary  in  order  to  sustain  an  action  for 
abuse  of  process  to  prove  both  malice  and  want  of 
probable  cause,  though  if  it  be  shown  that  the  abuse  was 
for  the  purpose  of  accomplishing  some  collateral  wrong- 
ful purpose  malice  and  want  of  probable  cause  may  be 
inferred. 

§  77.     Remedy. — The  remedy   for  malicious   prose- 


^  77]  MAUCIOUS    PROSECUTION  67 


s 


s 


cution  is  an  action  for  damages,  which  may  be  brought 
against  any  one  who  commences  or  procures  another  to 
commence  such  prosecution.  Pubhc  officers,  however, 
who  are  charged  with  the  duty  of  bringing  such  prosecu- 
tions, will  be  held  liable  only  upon  very  clear  proof  of 
malice. 

The  damages  recoverable  may  be  for  all  expenses, 
including  attorney's  fees  in  the  proceeding  complained 
of,  suffering  mental  and  physical,  loss  of  time  and  busi- 
ness, injury  to  property,  injury  to  reputation  and  honor, 
and  the  loss  of  social  position.  Where  the  prosecution 
was  with  great  malice  or  other  aggravated  circumstances, 
exemplary  or  punitive  damages  may  be  allowed  in  addi- 
tion to  the  compensatory  damages.  By  way  of  mitiga- 
tion of  the  damages  it  may  be  shown  that  the  plaintiff 
had  a  bad  character,  that  his  conduct  was  such  as  to 
arouse  suspicion,  that  any  reasons  for  probable  cause 
existed  though  insufficient  to  establish  it ;  also  anything 
that  goes  to  rebut  malice.  But  exemplary  damages  can 
not  be  recovered  where  the  acts  complained  of  are  pun- 
ishable criminally. 


CHAPTER  XI 


DEFAMATION 


Sec. 

Sec. 

78. 

Definition    of    defamation. 

92. 

79. 

The  right  to  reputation. 

93. 

80. 

Libel  and  slander. 

94. 

81. 

Slander. 

95. 

82. 

Slander  imputing  crime. 

96. 

83. 

Slander   imputing   disease. 

97. 

84. 

Slander    affecting    one    in 
his  office,  profession   or 

98. 

trade. 

99. 

85. 

Slanders    actionable     only 
by     reason     of     special 

100. 

damages. 

101. 

86. 

Libel. 

87. 

Definition. 

102. 

88. 

Newspapers. 

89. 

Publication. 

103. 

90. 

Construction. 

104. 

Malice. 

Justification. 

Privilege. 

Absolute   privilege. 

Legislative  proceedings. 

Judicial   proceedings. 

Naval  and  military  mat- 
ters. 

Qualified  privilege. 

Matters  of  public  interest 
and  concern. 

Communications  made  un- 
der duty. 

Communications  in  self- 
defense. 

The  remedy. 

The  damages. 


§  78.  Definition  of  defamation. — Defamation  is  a 
false  statement  or  communication  to  the  mind  of  a  third 
party  which  either  subjects  a  person  to  pubHc  ridicule, 
contempt,  hatred  or  disgrace,  or  which  tends  to  injure 
him  in  his  office,  calling,  business,  trade  or  profession. 


§  79.  The  right  to  reputation. — The  theory  upon 
which  an  action  is  given  for  defamation  is  that  the  per- 
son was  entitled  to  a  good  reputation,  that  a  false  state- 
ment was  maliciously  made  affecting  the  reputation,  and 
that  damages  resulted  therefrom.  Although  upon  general 
principles  the  plaintiff  is  bound  to  affirmatively  establish 
all   of   the   elements    constituting   his    cause   of   action,    it 

68 


§  80]  DEFAMATION  69 

would,  in  nearly  all  cases  of  defamation,  be  found  highly 
inconvenient  to  enforce  such  principles  strictly.  For,  the 
nature  of  the  charge  may  be  such  that  no  evidence  is 
attainable  as  to  its  truth  or  falsity ;  or,  it  may  be  impos- 
sible to  expressly  show  the  damage  done;  or,  a  stranger 
in  the  community,  having  acquired  no  reputation  as  yet, 
could  prove  no  actual  damage,  and  might  be  wholly 
unable  to  show  how  he  would  be  actually  damaged  in 
the  future.  Taking  into  consideration  these  difficulties, 
and  to  the  end  that  justice  may  not  miscarry,  the  law 
aids  the  person  defamed  by  making  certain  presumptions 
in  his  favor  and  throwing  the  burden  upon  the  wrong- 
doer to  produce  evidence  to  justify  or  excuse  himself. 
Therefore,  in  the  absence  of  evidence,  the  law  presumes: 
(1)  That  every  one  has  a  good  reputation.  (2)  That 
every  charge  against  reputation  is  false.  (3)  That  every 
false  charge  is  maliciously  made.  (4)  Where  injury 
would  naturally  result,  that  it  has  actually  resulted. 

§  80.  Libel  and  slander, — The  law  divides  defama- 
tions into  two  classes.  False  defamatory  words,  if 
written  and  published,  constitute  libel;  if  published  orally, 
slander.  Libel  is  communicated  through  the  medium  of 
eyesight;  slander  through  the  medium  of  hearing.  By 
reason  of  the  permanent  and  deliberate  character  of  libel, 
it  is  regarded  as  of  a  more  aggravated  nature  than  a 
mere  slander,  which  may  be  spoken  in  heat  and  excite- 
ment, and  may  be  more  easily  effaced  from  the  memory 
of  the  hearers. 

While  there  is  much  that  is  common  to  both  libel 
and  slander,  there  are  some  points  in  which  they  radically 
differ.  It  will  be  convenient  to  consider  each  separately, 
in  so  far  as  they  are  variant,  and  afterwards  to  note  the 
principles  common  to  both. 


70  ELEMENTARY    I,AW  [§  81 

§81.  Slander. — False  defamatory  words  spoken  of 
a  person  are  actionable :  ( 1 )  Where  they  charge  an  indict- 
able offense,  which  involves  moral  turpitude  or  would  sub- 
ject the  person  to  an  ignominious  punishment.  (2)  Where 
they  charge  a  person  with  having  a  contagious  or  infectious 
disease,  tending  to  exclude  him  from  society.  (3)  Where 
they  are  spoken  of  a  person  in  the  way  of  his  office,  trade 
or  profession.  In  these  three  classes,  and  no  others,  the 
law  presumes  without  proof  that  the  reputation  has  been 
injured.  They  are  said  to  be  actionable  per  se.  (4)  This 
leaves  a  fourth  class,  in  which  the  charge  is  such  that 
damages  can  not  be  said  to  be  the  usual  and  natural 
result,  and  therefore  the  law  does  not  presume  them,  but 
requires  the  person  injured  to  allege  and  prove  the  special 
damages  suffered. 

§  82.  Slander  imputing  crime. — It  is  necessary  that 
the  acts  charged  be  such  as  are  indictable.  If  not  in- 
dictable, the  charge  is  not  actionable  per  se  under  this 
class,  unless  so  declared  to  be  by  statute. 

By  ignominious  punishment  is  meant  any  corporeal 
punishment,  as  death,  whipping  or  imprisonment.  Punish- 
ment by  fine  only  is  not  deemed  ignominious.  But  if  the 
penalty  be  in  the  alternative,  by  fine  or  imprisonment, 
the  offense  is  punishable  ignominiously. 

What  does  and  what  does  not  involve  moral  turpi- 
tude, it  is  not  easy  to  define.  When  the  case  arises,  it 
is  usually  clear.  It  may  be  stated  to  be  whatever  is 
shocking  to  the  moral  sense  of  the  community.  Slander 
imputing  such  offense  is  actionable  per  se,  even  though 
the  offense  be  punishable  by  fine  only. 

Where  crime  is  charged,  it  is  immaterial  whether  it 
be  stated  that  the  party  has  been  punished  for  such 
crime,  or  that  he  is  guilty  and  liable  to  be  punished.  If 
false,  the  charge  is  equally  actionable  per  se. 


§  85]  de;famation  71 

Proper  to  be  included  in  this  class  are  certain  charges 
which  are  declared  by  statute  to  be  actionable  per  se,  in 
the  same  manner  as  charges  of  crime.  These  are  usually 
charges  affecting  the  chastity  of  a  woman,  and  charges 
of  certain  disgraceful  acts  by  either  a  man  or  a  woman. 
In  some  states  the  charge  of  unchastity  against  a  man  is 
also  made  actionable  per  se. 

The  imputation  of  crime  need  not  be  in  language  that 
technically  describes  the  crime.  It  is  sufficient  if  the 
words  were  meant  and  understood  to  convey  such  imputa- 
tion. 

§  83.  Slander  imputing  disease. — The  diseases  in- 
tended by  this  class  are  such  as  are  loathesome  or  involve 
moral  disgrace.  A  charge  that  one  has  the  small-pox  is, 
however,  not  deemed  to  be  actionable  per  se.  It  is 
essential  that  the  disease  be  charged  as  existing  at  the 
time.  If  the  statement  be  made  in  the  past  tense,  it  is 
not  actionable  per  se  under  this  class. 

§  84.  Slander  affecting  one  in  his  office,  profession 
or  trade. — It  is  essential  that  the  occupation  be  one 
that  is  recognized  by  the  law  as  legitimate,  and  that  the 
slander  touch  one  in  the  capacity  of  his  occupation. 
Hence  it  is  not  actionable  per  se  to  say  of  a  gambler  that 
he  cheats  in  cards.  But  it  is  actionable  per  3e  to  say  of 
an  attorney  that  he  disclosed  professional  communica- 
tions; of  a  clergyman  that  he  is  a  drunkard;  of  a  physi- 
cian that  he  is  guilty  of  malpractice;  of  a  judge  that  he 
takes  bribes ;  of  a  mechanic  that  he  is  incompetent.  It 
is  also  essential  that  the  charge  be  made  while  the  person 
is  holding  or  pursuing  the  occupation.  If  made  after- 
ward it  is  not  actionable  per  se. 

§  85.     Slanders  actionable   only  by  reason  of  spe- 


72  ELEMENTARY    LAW  [§  S6 

cial  damages. — A  satisfactory  enumeration  of  such 
cases  can  not  be  made.  Any  defamatory  words  that 
produce  actual  damage  may  give  a  cause  of  action. 
Words  are  said  to  be  defamatory  in  this  sense  when  they 
hold  a  person  up  to  public  ridicule,  contempt,  hatred  or 
disgrace.  The  damages  must,  however,  be  such  as  are 
deemed  to  be  the  proximate  result  of  the  slander.  If 
the  damages  are  remote  there  is  no  cause  of  action.  It 
is  essential  that  the  damages  be  pecuniary  or  material, 
such  as  the  loss  of  a  marriage,  loss  of  employment,  loss 
of  profits  or  injury  to  business.  ]\Iere  mental  anxiety 
and  distress  are  not  such  damages  as  will  support  the 
action. 

§  86.  Libel. — A  libel  need  not  necessarily  be  in 
writing  or  print.  Any  caricature,  scandalous  painting, 
drawing  or  effigy  may  constitute  a  libel.  Any  spoken 
charge  that  is  actionable  per  se  will  if  published  in  writ- 
ing be  a  libel.  Hence,  it  is  libelous  to  charge  in  writing, 
crimes,  diseases  or  scandals  affecting  occupations.  But 
libel  goes  further,  its  wider  range  being  based  upon  the 
deliberate  nature  of  the  act,  its  permanent  form  and  the 
greater  damage  caused. 

§  87.  Definition. — Any  false  and  defamatory  print- 
ing, writing,  sign,  picture,  representation  or  effigy,  tend- 
ing to  expose  any  person  to  public  hatred  or  ridicule, 
deprive  him  of  the  benefits  of  public  confidence  or  social 
intercourse,  or  designed  to  blacken  and  vilify  the  memory 
of  a  deceased  person  and  tending  to  scandalize  and  dis- 
grace his  relations  and  friends,  is  a  libel. 

It  is  not  necessary  to  prove  special  damages  in  any 
action  for  libel.  If  there"  is  a  libel  at  all,  it  is  a  libel 
per  se. 

It  is  not  necessary  that  the  libelous  language  impute 


§  89]  DEFAMATION  73 

crime  or  even  disgraceful  conduct;  it  is  sufficient  if  the 
person   is   rendered   contemptible   or   ridiculous. 

As  to  charges  affecting  one's  occupation,  or  imputing 
diseases,  it  is  not  essential  in  libel  that  tliey  be  made 
in  the  present  tense,  as  is  the  case  in  slander.  To  impute 
by  libel  past  misconduct  or  past  diseases  may  also  be 
actionable. 

§  88.  Newspapers, — The  constitutional  guaranty  of 
freedom  of  the  press  is  often  misconstrued,  and  it  is 
popularly  supposed  that  newspapers  by  virtue  of  their 
public  nature  are  not  held  to  so  strict  accountability  for 
libel  as  mere  private  individuals.  The  law  recognizes  no 
such  distinction.  Freedom  of  the  press  means  that  there 
shall  be  no  censorship  by  those  in  authority.  Any  man 
is  free  to  write  or  publish  whatever  he  chooses  of 
another,  but  subject  to  the  legal  consequences  if  the  pub- 
lication be  defamatory.  Newspaper  and  individual  must 
defend  upon  the  same  legal  grounds. 

We  pass  now  to  the  principles  common  to  both  libel 
and  slander. 

§  89.  Publication. — It  is  essential,  in  order  to  give 
an  action  for  libel  or  slander,  that  the  defamatory  words 
shall  have  been  published.  By  publication  is  meant  com- 
munication to  a  third  person.  If  the  words  be  heard  or 
read  only  by  the  person  against  wliom  they  are  directed, 
there  is  no  liability ;  for  his  reputation,  that  is,  the  esti- 
mation in  which  he  is  held  by  others,  is  not  thereby 
injured.  And  if  such  person  repeat  the  words,  or  show 
the  letter  to  others,  he  has  no  cause  of  action,  for  the 
publication  was  his  own  act.  It  is  not  necessary  that  the 
author  shall  have  intended  publication,  for  he  is  liable 
for  its  unintended  publication  if  it  happens  through  his 
mistake  or  negligence.     So  if  one  shouts  a  slander  he  is 


74  ELEMENTARY    LAW  [§90 

not  liable  if  no  one  hears  it,  but  he  is  liable  if  there  is 
a  listener  known  or  unknown.  But  the  author  is  prob- 
ably not  subject  to  absolute  liability.  For  instance,  if 
X  writes  a  libel  on  Y,  addresses  it  to  him  and  locks  it 
up  in  his  desk  and  a  thief  breaks  into  his  office  and 
steals  and  reads  the  letter,  the  author  would  not  be  liable. 
However,  should  X  give  the  letter  to  Z  thinking  him  to 
be  Y,  X  would  be  liable  for  the  publication  since  it  was 
published  through  his  mistake.  Likewise,  if  X  address' 
a  libel  to  Y  and  it  is  known  that  it  is  possible  or  probable 
that  the  letter  will  be  opened  and  the  libel  read  by  Y's 
private  secretary  and  the  secretary  does  so,  X  is  liable 
to  Y,  for  the  publication  may  then  be  chargeable  to  his 
negligence. 

Where  two  persons  composed  a  libel  together  and  sent 
it  to  the  plaintiff,  it  was  held  to  be  a  publication,  the 
part  that  each  took  being  a  publication  in  the  hearing  and 
knowledge  of  the  other.  Every  repetition  of  a  slander 
or  libel  is  a  fresh  publication,  and  gives  a  cause  of 
action. 

The  law  regards  communications  between  husband 
and  wife  as  privileged,  therefore  communication  by  either 
to  the  other  of  defamatory  matter  against  others  is  not 
deemed  to  be  a  publication.  But  if  such  communication 
be  in  the  hearing  or  to  the  knowledge  of  a  third  person, 
there  is  a  publication.  A  slander  or  libel  against  either 
a  husband  or  wife,  if  heard  or  read  by  the  other,  is  a 
publication. 

§  90.  Construction. — The  general  rule  is  that 
words  are  to  be  understood  according  to  their  plain  and 
natural  import,  and  when  the  language  is  clear  and 
unambiguous  the  court  will  not,  ordinarily,  allow  the 
meaning  to  be  varied  by  testimony  that  the  author 
intended  or   the   hearers   understood   them  in  a  different 


§  90]  DEFAMATION  75 

sense.      For,    ordinarily,    the    presense    or    absence    of    an 
intention    to    injure    can    not    change    the    effect    of    the 
language;    and,    on   the    other    hand,    the    fact   that    some 
persons  misunderstood   the  language  ought   not  to  deter- 
mine its  quality,  good  or  bad.     In  the  large  majority  of 
cases,   however,   there   is   room    for  question   whether  the 
language  is   to  a  greater  or   less  degree   injurious   in   its 
meaning.     Wherever  by  reason  of  any  local  or  provincial 
usage  words  have  an   unusual   meaning,   or  wherever  by 
reason  of  any  special   circumstances  the   language  has   a 
peculiar  effect,  the  plaintiff  may  declare  what  such  mean- 
ing or  innuendo  is,  and  such  facts  may  be  given  in  evi- 
dence and  the   language  construed  in  the  light  of  them. 
Such  facts  may  be  shown  whether  the  result  be  to  estab- 
lish either  an  innocent  or  a  harmful  meaning.     In  cases 
where  the  language  is  ambiguous  in  any  respect,  the  law 
has  undergone  some  modifications.     In  the  earlier  actions 
the  rule  was  that  the  words  were  to  be  construed  in  the 
most    favorable    sense,    the    theory    being   that    such    con- 
struction  would    suppress   litigation.      Later,    it   was   held 
that  words  should   be  taken  in  an  unfavorable   sense,   it 
being  supposed  that,  by  affording  legal  remedy,  resort  to 
personal  violence   for  redress  would  be  prevented.      Still 
later  the  well-recognized  rule  was  that  the  courts  should 
affix   to   the   words   a   plain   and    natural   meaning.      The 
modern    rule,     however,     sustained     by     the     weight     of 
authority    and    founded    in   better    reason,    is    that    where 
there   is   any  ambiguity   in  the   language   the   words  may 
be  construed  in  the  reasonable  sense  in  which  the  hearers 
or   readers   actually   understood    them,    and    to   that   end 
the  testimony  of  the  hearers   or  readers   is   received,   to- 
gether with  evidence  of  all  the  surrounding  circumstances. 
The  meaning  actually  intended  by  the  author  is   im- 
material upon  the  question  of  liability,   except  so   far  as 
he    may    have    made    it    apparent    at    the    time.      If    his 


7(i  ELEMENTARY    LAW  [§91 

ambiguous  language  is  intended  harmlessly,  but  is  rea- 
sonably understood  in  an  injurious  sense,  he  is  respon- 
sible. And  if  the  language  is  not  defamatory  and  is  not 
so  taken,  there  is  no  injury,  although  the  author  desires 
and  intends  there  should  be. 

§  91.  Certainty. — The  rule  of  law  is  that  there  is 
no  liability  unless  there  is  certainty,  ( 1 )  as  to  the  person 
charged,  (2)  as  to  the  imputation  made.  The  reference 
must  be  to  some  ascertained  or  ascertainable  person,  who 
must,  of  course,  be  the  plaintiff.  The  person  may  be 
ascertained  either  from  the  language  itself  or  from  the 
surrounding  circumstances  which  give  peculiar  point  to 
the  language.  So,  where  the  reference  is  to  a  class  of 
individuals  and  not  to  any  member,  the  circumstances 
may  be  such  that  the  jury  can  determine  which  was 
meant.  But  to  merely  charge  as  to  two  witnesses  who 
have  testified  contradictorily,  "one  of  you  two  has  com- 
mitted perjury,"  is  not  actionable,  for  it  is  not  and  can 
not  be  certainly  applied  to  either. 

The  imputation  made  must  be  certain,  or  capable  of 
being  made  certain.  The  words  need  not,  however,  be 
technically  exact  as  a  description  of  the  charge.  Any 
words  that  distinctly  assume  guilt  in  the  party  charged 
are  sufficient.  But  it  is  not  essential  that  the  words  be 
afBrmative.  They  may  be  actionable  where  the  form  of 
the  language  is  interrogative;  and  it  is  conceivable  that 
a  statement  in  the  negative  may  be  so  worded  or 
emphasized  as  to  convey  the  meaning  of  an  affirmative 
charge.  In  determining  whether  an  imputation  is  certain, 
it  is  proper  to  consider  not  only  the  words,  but  all  the 
surrounding  circumstances  that  may  give  especial  force 
to  language  used. 

§  92.     Malice. — By    most    law    writers    and    by    the 


§  92]  DEFAMATION  77 

courts  it  is  stated  that  malice  is  an  essential  ingredient 
of  actions  for  libel  or  slander.  But,  as  in  cases  for 
malicious  prosecution,  the  term  malice  has  a  peculiar 
meaning.  It  is  not  synonymous  with  hatred  or  ill  will. 
Malice  may,  in  a  legal  sense,  exist  where  in  fact  the 
defendant's  real  motive  was  to  benefit  the  plaintiff,  for 
example,  where  a  newspaper  publishes  the  fact  that  a 
defamatory  charge  has  been  made,  and  adds  the  comment 
that  the  publisher  believes  it  to  be  false. 

Malice  is  said  to  be  either  express  or  implied;  and  the 
distinction  is  clearly  marked.  Radically  different  prin- 
ciples control.  As  the  equivalents  of  express  and  implied 
malice,  the  words,  "malice  in  fact,"  and  "malice  in  law," 
are  also  used. 

Some  confusion  in  the  law  has  resulted  from  the 
failure  to  keep  the  distinction  clear.  The  courts  have 
often  used  the  word  malice  without  qualifications  to 
express  either  meaning,  and  some  decisions  have  there- 
fore been  misleading. 

Malice  in  law  or  implied  malice  is  such  as  the  court 
infers  without  evidence  of  malice.  The  inference  is  made 
from  the  fact  of  the  falsity  of  the  charge,  in  accordance 
with  the  presumptions  heretofore  noted.  This  inference 
is  not  permitted  by  the  law  to  be  overcome  by  evidence 
that  the  motive  was  not  in  fact  malicious.  It  can  be 
overcome  only  by  showing  that  the  words  complained  of 
were  published  upon  what  is  called  a  privileged  occasion. 
On  account  of  this  inflexible  rule  of  law,  some  text- 
writers  have  sought  to  establish  the  proposition  that  there 
is  but  one  kind  of  malice,  that  is,  express  malice,  or 
malice  in  fact,  and  that  instead  of  holding  that  there  is 
"malice  in  law"  in  certain  cases,  the  courts  should  hold 
that  in  such  cases  malice  is  not  essential.  The  results, 
however,  are  the  same,  and  the  courts  have  declined  to 
adopt  the  nomenclature  urged  by  these  text-writers. 


78  ELEMENTARY   LAW  [§93 

Express  malice,  or  malice  in  fact,  includes  actual 
malice  in  its  popular  acceptation.  As  an  eminent  judge 
said,  "It  means  a  wrong  feeling  in  a  man's  mind."  Any- 
indirect  or  dishonest  motive  which  induces  one  to  defame 
another  may  be  malice.  Gross  negligence  or  wantonness 
in  the  disregard  of  another's  rights  may  be  sufficient 
evidence  to  warrant  a  finding  that  malice  existed. 

Actual  malice  may  be  shown  by  intrinsic  evidence, 
namely,  the  kind  of  language  used,  its  exaggerated 
character,  the  manner  of  its  publication;  or  it  may  be 
shown  by  extrinsic  evidence,  namely,  by  any  facts  not 
contained  in  the  publication  itself,  as  for  instance,  by 
other  publications,  subsequent  repetitions,  refusal  to  re- 
tract, the  existence  of  an  old  grudge.  Actual  malice  is 
always  a  question  to  be  determined  by  the  jury,  and  not 
by  the  court. 

By  reason  of  the  presumptions  in  plaintiff's  favor, 
above  referred  to,  it  results  that  the  questions  arising  are 
usually  as  to  the  sufficiency  of  the  facts  to  afford  a 
defense.      The   defenses  will  now   be   considered. 

§  93.  Justification. — In  libel  and  slander  this  word 
means  only  that  the  charge  made  is  true.  The  presump- 
tion being  that  a  defamatory  charge  is  false,  the  burden 
falls  upon  the  defendant  to  prove,  if  he  can,  the  truth 
of  the  charge.  And  the  uniform  rule  is  that  if  the 
defendant  wishes  to  avail  himself  of  this  defense  he  must 
affirmatively  plead  it.  This  is  called  a  plea  or  answer  of 
justification.  The  defendant  may  always  defend  by 
showing  the  truth  of  the  imputation,  and  the  defense,  if 
established,  is  complete;  for  there  can  be  no  legal  wrong 
of  defamation  by  speaking  the  truth  of  any  one.  Under 
a  plea  of  justification,  however,  the  defendant  miist  show 
that  not  only  the  words  but  their  meaning,  as  alleged, 
are  true.     If  he  disputes  that  the  words  mean  what  they 


§  94]  DEFAMATION  79 

are  alleged  to  mean,  he  does  not  do  so  by  way  of  justifi- 
cation,  but  to  that  extent  by  denial. 

It  is  a  principle  peculiar  to  civil  suits  for  libel  and 
slander  that  where  the  defamatory  charge  is  that  crime 
has  been  committed,  it  is  necessary,  in  order  to  sustain 
a  plea  of  justification,  to  prove  the  truth  of  the  charge 
by  the  same  degree  of  proof  that  would  be  required  to 
convict  the  party  if  under  indictment  for  the  crime.  In 
other  words,  justification  of  a  charge  of  crime  must  be 
proved  beyond  a  reasonable  doubt.  But  if  no  crime  is 
charged  the  justification  may  be  established  by  a  mere 
preponderance  of  evidence.  These  rules  have  been  modi- 
fied by  statute  in  some  states. 

Where  justification  is  the  issue,  it  is  wholly  im- 
material to  the  question  of  liability  whether  the  defend- 
ant acted  maliciously  or  not.  If  the  charge  is  true,  the 
defense  is  complete,  even  though  there  was  gross  malice; 
and  if  the  charge  is  found  not  true,  the  defendant  is  not 
relieved  from  liability  by  the  fact  that  he  acted  in  good 
faith.  The  only  effect  of  evidence  as  to  defendant's 
motive  in  such  case  can  be  to  enhance  or  diminish  the 
amount  of  damages  recovered. 

§  94.  Privilege. — As  has  been  said,  the  truth  is 
a  complete  defense  in  libel  and  slander.  Wherever 
truth  is  shown  the  action  fails.  The  question  now  arises, 
when  does  the  law  excuse  a  defamatory  charge  that  is 
false?  Upon  grounds  of  public  policy,  common  con- 
venience and  the  general  welfare  of  society,  there  must 
be  immunity  upon  certain  occasions.  Statements  made 
upon  such  occasions  are  called  privileged  communications. 
They  are  divided  into  two  classes  and  are  said  to  be 
of  either:  (1)  Absolute  privilege.  (2)  Qualified 
privilege.  It  is  to  be  noted  that  the  privilege  attaches 
to  the  occasion,  and  not  to  the  matter  stated,   for,  if  the 


80  EI.EMENTAKY    LAW  [§  95 

same  matter  be  afterward  repeated  upon  an  unprivileged 
occasion,  it  has  no  protection. 

§  95.  Absolute  privilege. — The  occasions  of  abso- 
lute privilege  are  few,  and  the  tendency  of  the  courts  is 
to  narrow  rather  than  enlarge  them.  They  rest  upon 
the  ground  that  it  is  advantageous  to  the  public  interests 
that  persons  on  such  occasions  should  not  be  fettered  in 
their  statements.  The  cases  of  absolute  privilege  fall 
under  three  heads:  (1)  Legislative  proceedings.  (2) 
Judicial  proceedings.      (3)   Naval  and  military  affairs. 

§  96.  Legislative  proceedings. — No  member  of 
either  house  of  congress,  or  of  either  house  of  the  state 
legislature,  is  in  any  w^ay  responsible  in  a  court  for  any- 
thing he  may  say  in  such  house.  This  rests  upon  the 
provisions  common  to  the  constitutions  of  the  United 
States  and  several  states  that,  "for  any  speech  or  debate 
in  either  house,  they  shall  not  be  questioned  in  any  other 
place."  The  privilege,  however,  is  confined  to  the  walls 
of  the  house,  w^hich  includes  its  committee-rooms.  If 
the  member  publish  the  speech  to  the  world,  he  is  liable 
as  any  other  individual  would  be.  The  absolute  privilege 
does  not  extend  to  inferior  lesfislative  bodies. 


-b' 


§  97.  Judicial  proceedings. — Everything  that  a 
judge  says  on  the  bench,  or  a  witness  on  the  stand,  or 
counsel  in  trying  and  arguing  a  cause,  is  absolutely 
privileged,   so  long  as  it  is  pertinent  to  the  inquiry. 

A  judge  of  a  court  of  general  jurisdiction  is  free  to 
say  anything  concerning  a  case,  while  the  case  is  being 
tried,  no  matter  what  his  knowledge  or  motive  is,  and 
whether  the  statement  is  relevant  or  not.  But  a  judge  of 
limited  jurisdiction  is  not  privileged,  unless  the  statement 
be   relevant   to   the   matter   in   hand.      A   witness   on   the 


§  98]  DEFAMATION  81 

Stand  is  not  liable  for  any  statement  he  may  make, 
whatever  may  be  his  knowledge  or  motive,  provided  such 
statement  is  drawn  out  by  questions,  or,  if  volunteered, 
is  relevant  or  believed  to  be  relevant  to  the  case.  For 
any  irrelevant  matter,  if  volunteered  from  a  malicious 
motive,  he  may  be  held  liable,  and  he  may  be  held  liable 
for  any  statements  made  while  not  on  the  stand,  whether 
in  or  outside  the  courtroom. 

Counsel  in  a  cause  may  speak  any  words,  however 
defamatory  and  false,  and  whatever  may  be  their  knowl- 
edge or  motive,  provided  only  that  they  are  acting  within 
their  instructions  and  their  remarks  are  pertinent  to  the 
case.  They  may  draw  any  inference  they  wish  from  the 
evidence.  But  they  may  not  recklessly  assert  anything  of 
which  they  can  give  no  evidence. 

All  pleadings,  affidavits  and  papers  in  a  cause  are 
privileged  if  pertinent.  A  New  York  court  has  said: 
"Whatever  may  be  said  or  written  by  a  party  to  a  judi- 
cial proceeding,  or  by  his  attorney,  solicitor  or  counsel 
therein,  if  pertinent  and  material  to  the  matter  in  con- 
troversy, is  privileged.  *  *  *  But  this  is  the  extent 
of  the  privilege;  for  if  a  party  or  his  agent  will  pass 
beyond  the  prescribed  limits  to  asperse  and  vilify  another 
by  word  or  writing,  he  is  without  protection." 

§  98.  Naval  and  military  matters. — All  reports  by 
a  naval  or  military  officer  to  his  superior,  and  all  testi- 
mony or  argument  in  a  court-martial,  as  well  as  all  other 
official  reports  of  like  character,  are  absolutely  privileged. 
In  all  cases  of  absolute  privilege,  the  question  is  only 
whether  the  defendant  has  brought  himself  within  it.  If 
he  has  not,  he  is  liable  as  any  other  person  would  be; 
if  he  has,  then  the  question  of  his  malice  is  wholly  im- 
material. 

6 — Elem.  Law. 


82  ELEMENTARY   LAW  [§99 

§  99.  Qualified  privilege. — It  is  an  essential  ele- 
ment of  all  qualified  privileges,  that  the  communication 
under  it  be  made  in  good  faith.  No  person  is  allowed 
to  take  advantage  of  qualified  privilege  to  vent  his  malice. 

Whenever  it  is  shown  that  the  language  complained 
of  was  uttered  upon  a  privileged  occasion,  the  law  ceases 
to  presume  the  existence  of  malice,  and  requires  proof 
that  there  was  actual  malice.  As  it  is  expressed,  the 
privileged  occasion  rebuts  implied  malice.  It  then  be- 
comes incumbent  upon  the  plaintiff  to  prove  that  tlie 
defendant  was  actuated  by  express  malice — malice  in 
fact;  and  unless  in  such  case  the  plaintiff  does  establish 
the  existence  of  malice  in  fact  his  action  fails.  Whether 
a  privilege  exists  is  always  a  question  of  law  for  the 
court;  whether  the  defendant  was  actuated  by  the  proper 
motive  is  left  to  the  jury. 

In  all  cases  of  qualified  privilege  it  is  conclusive  evi- 
dence of  actual  malice  to  prove  that  the  defendant  knew 
the  charge  to  be  false.  For  it  is  inconceivable  that  a 
man  can  have  an  innocent  motive  in  uttering  a  defam- 
atory charge  that  he  knows  to  be  false. 

Cases  of  qualified  privilege  may  be  grouped  under 
three  heads:  (1)  Communications  made  in  matters  of 
public  interest  and  general  concern.  (2)  Communica- 
tions made  to  persons  to  whom  the  defendant  owes  a 
duty  to  make  communication.  (3)  Communications  made 
in  self-defense. 

§  100.  Matters  of  public  interest  and  concern. — 
Anything  that  is  of  general  concern  to  the  inhabitants  of 
a  town,  city  or  community  is  what  is  thus  privileged. 
Though  the  matter  be  of  only  a  local  interest  the  rule 
applies,  so  long  as  the  matter  is  not  merely  of  private 
concern.  All  public  institutions  and  their  management, 
all  public  entertainments,  published  books,  pictures  pub- 


§  100]  DEFAMATION  83 

licly  exhibited,  the  architecture  of  public  buildings  may- 
be freely  criticised.  All  appeals  to  the  public  are  subject 
to  honest  criticism  and  the  critic  will  not  be  liable  for 
false  statements  made.  Whoever  seeks  notoriety  or  in- 
vites public  attention  challenges  public  criticism  and 
must  bear  the  burden  of  honestly  made  statements,  even 
though  they  may  be  erroneous.  All  public  officials  and 
candidates  for  office  may  be  freely  criticised,  provided 
the  criticism  be  made  in  good  faith. 

But  whenever  matters  of  general  concern  are  com- 
mented upon,  the  speaker  or  writer  is  bound  to  confine 
himself  to  what  is  of  public  nature.  If  this  limit  is 
transcended  and  private  matters  or  private  character 
touched  upon,  no  privilege  can  be  claimed  therefor.  For 
instance,  though  the  official  acts  of  an  officer  may  in 
good  faith  be  commented  upon,  by  reason  or  by  ridicule, 
even  though  the  statements  be  in  fact  false  and  injurious, 
yet  if  the  critic  should  go  beyond  the  public  matter,  and 
falsely  accuse  the  officer  of  a  crime,  it  would  affect  him 
privately,  and  no  protection  would  be  given. 

Reports  of  judicial  proceedings  are  upon  matters  of 
public  interest.  Every  fair  and  accurate  report  of  judicial 
proceedings  is  privileged,  though  false  defamatory  matter 
be  contained  in  it.  The  privilege  does  not  attach,  how- 
ever, where  the  publication  is  prohibited  by  the  court, 
or  where  the  matter  is  obscene;  for  in  such  case  the 
publisher  is  guilty  of  wrong  in  the  very  fact  of  publish- 
ing, and  will  not  be  permitted  to  avail  himself  of  a  legal 
protection  for  such  wrong.  The  report  to  be  privileged 
must  be  substantially  a  fair  account  of  what  actually  took 
place  in  court.  The  reporter  may  not,  however,  select 
damaging  parts  and  omit  the  beneficial  parts ;  and  he 
has  no  privilege  to  comment  on  the  evidence  and  give  his 
opinion   of   it.      Indeed,    if   he    mixes    up   comment    with 


84  e;lementary  law  [§  101 

wliat  would   otherwise  be   a   fair   report,   the   privilege   is 
lost  for  the  whole  article. 

Fair  and  accurate  reports  of  proceedings  of  the  legis- 
lature stand  upon  the  same  footing,  and  are  subject 
to  the  same  limitations,  as  in  case  of  judicial  proceed- 
ings. No  other  reports  are  privileged.  No  privilege  can 
be  claimed  for  reports  of  the  doings  of  municipal  legisla- 
tures, public  meetings,  political  meetings,  or  stockholders' 
meetings,  unless  it  is  so  provided  by  statute  as  it  is  in 
some  states. 

§  101.  Communications  made  under  duty. — There 
is  no  liability  for  honest  mistakes,  where  an  employer  is 
asked  to  give  a  statement  regarding  the  character  of  a 
servant.  But  there  is  no  protection  given,,  if  the  false 
statement  be  made  from  an  improper  motive,  or  if  made 
recklessly  and  wantonly.  There  is  no  privilege  for 
officious  intermeddling,  as  where  no  inquiry  has  been 
made,  or  where  there  is  no  duty  to  speak. 

Answers  made  in  good  faith  to  inquiries  about  per- 
sons with  whom  business  dealings  are  contemplated  are 
protected  even  though  they  turn  out  to  be  false.  Hence, 
reports  of  mercantile  agencies  to  their  customers  are 
privileged,  if  made  in  good  faith. 

So,  inquiries  by  and  answ^ers  to  one  interested  in 
discovering  a  wrongdoer,  are  privileged.  Any  relation  of 
confidence  is  sufficient  to  raise  a  duty  to  make  communi- 
cations, and  if  they  are  made  in  good  faith  they  are 
privileged.  The  following  relations  have  been  held  to  be 
of  the  privileged  character:  Husband  and  wife,  father 
and  child,  brothers  and  sisters,  guardian  and  ward,  mas- 
ter and  servant,  principal  and  agent,  landlord  and  tenant, 
lawyer  and  client,  partners,  and  in  one  case  it  was  held 
that  intimate   friendship  might  be  a  sufficient  ground. 


§  104]  DEFAMATION  85 

§  102.  Communications  in  self-defense. — If  the 
statement  complained  of  be  one  which  has  been  invited 
or  requested  by  the  plaintiff,  it  is  privileged,  even  though 
false,  provided  it  be  made  in  good  faith.  For  example, 
if  the  defendant  had  previously  made  the  statement  under 
a  privilege,  and  the  plaintiff  demands  an  explanation  in 
the  presence  of  strangers,  or  if  defamatory  words  had 
been  said  by  the  defendant  to  the  plaintiff  alone,  and 
plaintiff  afterwards  bring  a  stranger  and  demand  whether 
defendant  had  used  the  defamatory  words,  such  subse- 
quent statements  are  deemed  to  be  made  in  self-defense 
and  are  privileged  if  in  good  faith. 

§  103.  The  remedy. — The  civil  remedy  for  libel  or 
slander  is  an  action  for  damages.  The  courts  will  not 
interfere  by  injunction  to  restrain  the  publication  of  a 
libel  or  slander,  for  the  reason  that  it  must  first  be 
established  before  a  jury  whether  the  matter  is  or  is  not 
actionable.  But  after  a  verdict  for  the  plaintiff,  a  court 
of  equity  may  enjoin  the  subsequent  repetitions  of  the 
defamatory  matter. 

§  104.  The  damages. — Considered  from  the  point 
of  view  of  the  jury,  the  damages  awarded  may  be:  (1) 
Contemptuous,  as  where  the  defendant  has  been  techni- 
cally guilty  of  defamation,  but  the  jury  think  the  plain- 
tiff greatly  in  fault,  and  therefore  assess  the  damages  at 
a  nominal  sum.  (2)  Substantial  or  compensatory,  where 
the  jury  aims  to  arrive  at  the  actual  injury  suffered  by 
the  plaintiff.  (3)  Exemplary  or  punitive,  where  the 
jury  seek  to  express  their  sense  of  the  defendant's  harsh 
and  malicious  conduct  by  fining  him  in  an  amount  beyond 
the  compensatory  damages. 

Considered  from  the  judge's  point  of  view  the  dam- 
ages   assessed    may    be    either :      ( 1 )    General    damages^ 


86  Ei,Kme;ntary  law  [§  104 

namely,  the  natural  and  probable  consequences  of  the 
false  charge,  which  are  presumed  by  the  law  without 
evidence  in  all  cases  where  the  words  are  actionable  per 
se.  (2)  Special  damages,  namely,  such  as  the  law  will 
not   infer,   but   requires   to  be   established   by   evidence. 

Wherever  general  damages  are  recoverable,  special 
damages  may  also  be  recovered  if  specially  pleaded  and 
proved.  Where  a  charge  is  not  actionable  per  se,  there 
is  no  cause  of  action  unless  the  special  damages  be 
alleged  and  proved,  and  the  recovery  is  limited  to  such 
special  damages. 

The  amount  recoverable  by  the  plaintiff  as  com- 
pensatory damages  may  be  larger  or  smaller  according 
to  the  evidence.  Whatever  goes  to  show  the  greater 
extent  of  the  injury  is  said  to  be  in  aggravation  of  dam- 
ages; whatever  goes  to  show  the  less  extent  of  the  injury 
is  said  to  be  in  mitigation  of  damages. 

By  way  of  aggravation,  evidence  may  be  received  of 
the  social  position  and  influence  of  both  plaintiff  and  de- 
fendant and  their  pecuniary  circumstances  so  far  as  the 
same  may  bear  upon  the  influence  exerted  by  the  charge, 
the  publicity  of  the  charge,  the  fact  that  it  was  wholly 
unprovoked,  and  by  some  courts  it  is  held  that  an  unsuc- 
cessful plea  of  justification  may  be  considered  in  aggrava- 
tion, though  such  is  not  the  general  rule. 

By  way  of  mitigation  of  damages,  evidence  may  be 
received  that  the  words  were  spoken  in  passion  or  ex- 
citement provoked  by  plaintiff,  and  hence  all  the  injury 
is  not  attributable  to  defendant's  fault;  that  the  defend- 
ant had  no  actual  malice,  was  insane  or  drunk,  so  far 
as  the  same  may  have  appeared  at  the  time  of  the 
defamation,  and  so  have  caused  the  wrong  to  have  a  less 
injurious  effect;  that  plaintiff's  character  was  bad,  or 
that  general  rumors  existed  that  he  was  guilty ;  that  the 
defendant    has    made    ample   retraction.      While    the    fact 


§  104]  DEFAMATION  87 

that  others  had  previously  pubhshed  the  same  defamatory 
matter  is  not  in  itself  admissible  in  mitigation,  yet  the 
defendant  ought  not  to  be  held  liable  for  any  injury  not 
resulting  from  his  act,  and  it  seems  that  evidence  of 
previous  publication  by  others  will  be  received,  if  it  can 
be  shown  that  part  of  the  injury  claimed  by  plaintiff  was 
in  fact  caused  by  such  other  publications  and  not  by  de- 
fendant's act.  Whether  upon  a  plea  of  justification  only, 
any  evidence  in  mitigation  may  be  given  has  been  a 
disputed  question,  but  the  weight  of  authority  is  that 
such  evidence  may  be  admissible,  whatever  the  issue. 

Exemplary  or  punitive  damages  are  based  upon  the 
mental  attitude  of  the  wrongdoer,  and  are  by  way  of 
rebuke  or  punishment  for  his  malice.  They  may  be 
given  on  account  of  the  violent  or  exaggerated  character 
of  the  charge  as  showing  deliberate  malice.  Evidence 
may  be  received  of  previous  transactions  that  indicate 
malice  in  the  case  at  bar;  of  recklessness  in  uttering  the 
false  statement;  of  the  publicity  and  repetitions  of  the 
charge,  as  showing  unusual  malice;  of  a  refusal  to  listen 
to  explanations,  or  after  explanation  to  make  retraction. 
It  is  the  uniform  rule,  however,  that  exemplary  damages 
can  not  be  allowed  where  the  defamation  is  punished 
criminally.  Hence,  where  libel  is  an  indictable  offense, 
evidence  of  the  defendant's  actual  motive,  malicious  or 
otherwise,  is  not  properly  admissible,  except  so  far  as 
it  can  be  shown  to  have  affected  the  actual  injury. 

It  is  to  be  noted  that  in  slanders  of  the  fourth  class, 
that  is,  those  actionable  only  by  reason  of  special  dam- 
ages, the  plaintiff  is  confined  to  such  actual  injury  as  he 
alleges  and  proves,  and  since  exemplary  damages  are  not 
based  upon  actual  injury,  it  follows  that  in  cases  of 
slander  not  actionable  per  se,  no  exemplary  damages  can 
be  recovered. 


CHAPTER  Xn 


FRAUD  AND  DECEIT 


Sec 

Sec. 

101 

Kinds  of  fraud. 

119. 

106. 

Frauds  in   confidential  re- 

120. 

lations. 

121. 

107. 

Parties  having  illegal  sex- 

122. 

ual  relations. 

123. 

108. 

Trustees. 

124. 

109. 

Attorneys,  physicians  and 
clergymen. 

125. 

110. 

Persons  of  weak  mind. 

111. 

Fraud    and    deception    be- 
tween equals. 

126. 

112. 

Definition. 

127. 

113. 

Fraud  by  silence. 

114. 

Equal     opportunities     for 

128. 

knowledge. 

129. 

115. 

Elements  of  fraud. 

130. 

116. 

Representations. 

131. 

117. 

Clearness  and  certainty. 

118. 

Matter  of  law. 

Matter  of  opinion. 

Matters  of  fact. 

Fraudulent  promises. 

Materiality. 

Falsity. 

Wrongdoer's     knowledge 

Wrongdoer's    intent     thar 

the      representation     be 

acted  on. 
Who    entitled    to   rely    on 

representations. 
Representation  must  have 

been  acted  on. 
Injured  party's  belief. 
Damage. 
The  remedies. 
Personal  injuries   through 

fraud. 


§  105.  Kinds  of  fraud. — It  is  every  one's  right  to 
have  others  exercise  good  faith  toward  him  and  to 
refrain  from  violating  the  trust  and  confidence  that  he 
may  place  in  them.  The  social  fabric  rests  upon  the 
maintenance  of  this  right.  It  is  evidently  impracticable, 
however,  for  the  law  to  enforce  perfectly  honest  and 
fair  dealing  under  all  circumstances.  The  inquiry  must 
be,  how  far  does  the  law  take  cognizance  of  or  under- 
take to  remedy  violations?  This  is  the  subject  of  frauds 
and  deceptions. 

Wrongs  of  this  kind  may  exist  where  the  parties  are 
not  upon  terms  of  equality,  and  the  injured  person  is 
by  reason  of  some  special  relation  entitled  to  repose  more 

88 


§  108]  fRAUD    AND    DECEIT  89 

than  usual  confidence  in  the  wrongdoer.  Or  such  wrongs 
may  be  where  the  parties  do  not  occupy  any  special  rela- 
tion toward  each  other.  As  to  both  classes,  the  wrong 
may  consist  in  either  affirmative  conduct,  as  where  one 
makes  a  false  statement  misleading  another,  or  in  negative 
conduct,  as  where  one  who  ought  to  speak  is  silent. 

§  106.  Frauds  in  confidential  relations. — Where 
parties  are  upon  any  special  terms  of  relationship  under 
which  one  is  entitled  to  place  peculiar  reliance  upon  the 
other,  the  law  will  closely  scrutinize  transactions  between 
them,  and  may  hold  any  violation  of  confidence  to  be 
a  legal  wrong.  Some  of  these  relations  will  be  separately 
considered.     The  principles  are  analogous  in  all. 

§  107.     Parties    having    illegal    sexual    relations. — 

Although  persons  living  in  illegal  sexual  relations  are 
both  in  the  wrong,  and  although  no  contract  will  be 
enforced  which  has  for  its  consideration  such  relation, 
nevertheless  the  law  recognizes  that  there  is  under  such 
circumstances  an  opportunity  for  one  to  take  undue 
advantage  of  the  other  through  misuse  of  confidence 
reposed.  Business  transactions  between  such  persons  are 
open  to  suspicion,  and  unless  the  party  benefited  shows 
that  no  advantage  was  taken,  the  law  will  afford  a 
remedy,  either  by  restoring  to  the  injured  party  what 
was  lost,  or  by  giving  damages. 

§  108.  Trustees. — The  relation  of  trustee  may  be 
created  either  by  the  party  himself,  or  by  some  individual 
for  his  benefit,  or  by  judicial  action.  Executors  and 
administrators,  guardians,  assignees,  receivers,  partners, 
agents  for  sale  of  property,  and  the  like,  are  all  trustees 
as  much  as  if  they  were  expressly  so  named.  In  every 
case  the  trustee  is  selected  on  account  of  confidence  re- 


90  ELEMENTARY    LAW  [§  109 

posed  in  him;  and  the  law  requires  of  the  trustee  perfect 
good  faith  and  integrity  in  the  discharge  of  his  obhga- 
tions.  It  is  an  elementary  principle  that  a  trustee  is 
permitted  to  do  nothing  whereby  he  personally  reaps  an 
advantage  to  the  detriment  of  his  trust.  Hence,  when- 
ever he  deals  with  his  beneficiary,  the  transaction  will  be 
deemed  fraudulent  unless  he  shows  that  he  made  full 
disclosure  of  all  matters  that  he  knew  or  ought  to  know, 
and  that  the  transaction  was  in  fact  a  fair  one.  It  is 
necessary  that  he  shall  have  put  the  beneficiary  on  terms 
of  perfect  equality  with  him.  Whenever  a  trustee  sells 
property  of  the  trust,  or  makes  contracts  in  relation  there- 
to, he  is  not  permitted  either  directly  or  indirectly  to 
make  a  profit  to  himself.  He  can  not,  either  himself  or 
through  a  third  person,  become  the  purchaser  at  his  sale, 
without  being  held  guilty  of  fraud.  The  beneficiary  has 
the  option  to  declare  the  sale  void,  or  to  afiirm  it,  if  he 
deem  it  to  his  advantage. 

In  cases  where  the  confidential  relation  is  of  such  a 
character  that  its  influence  can  be  supposed  to  continue 
after  the  relation  has  in  fact  terminated,  subsequent  deal- 
ings between  the  parties  may  be  held  to  be  not  on  equal 
terms,  and  for  any  misuse  of  the  influence  the  court  may 
declare  the  transactions   fraudulent. 

§  109.     Attorneys,  physicians  and  clergymen. — For 

the  discharge  of  these  professional  duties  it  is  necessary 
that  there  should  be  a  high  degree  of  confidence  reposed 
by  those  who  ask  their  aid.  Without  such  confidence  it 
would  often  be  impossible  to  secure  an}?-  benefit  from 
the  services  required.  The  law  not  only  favors,  but 
protects  to  the  fullest  degree,  all  communications  made 
to  secure  such  services.  Not  only  docs  the  law  refuse 
to  compel  the  professional  man  to  disclose  what  was  told 
him  in  confidence,  but  if  the  confidence  is  violated  by  his 


§  110]  FRAUD    AND    DfiCeiT  91 

voluntary  disclosure,  a  remedy  in  damages  may  be  given 
for  the  injury  done. 

The  confidence  reposed  begets  a  strong  influence  by 
the  professional  adviser.  If  in  any  business  dealings 
between  them  any  undue  advantage  is  taken,  the  law  will 
rectify  the  wrong  by  compelling  the  wrongdoer  to  make 
restitution  or  by  giving  damages  against  him. 

§  110.  Persons  of  weak  mind. — It  is  not  intended 
here  to  refer  to  persons  so  idiotic  and  mentally  diseased 
as  to  be  incapable  of  contracting  or  giving  consent.  Such 
persons  are  not  in  any  proper  sense  the  victims  of  fraud. 
Fraud  presupposes  some  intelligence,  enough  at  least  to 
be  misled.     The  acts  of  idiots  are  simply  void. 

There  are,  however,  persons  whose  intellectual  power, 
though  feeble,  is  sufficient  for  carrying  on  some  of  the 
affairs  of  business.  Their  acts  are  not  void.  The  law 
recognizes  that  such  persons  are  not  upon  terms  of 
equality  with  their  fellows,  and  therefore  justly  requires 
of  every  person  who  deals  with  them  a  high  degree  of 
good  faith.  Acts  that  might  not  be  held  deceptive  when 
practiced  on  a  person  of  average  intellect  will  be  held 
fraudulent  as  to  one  of  defective  mental  powers.  The 
least  undue  advantage  or  unfairness  taken  by  one  in  his 
dealings  with  the  weakminded,  will  be  laid  hold  of  by 
the  law  as  a  ground  for  giving  redress. 

Persons  intoxicated  fall  into  the  same  category  with 
those  of  feeble  intellect.  Whoever  deals  with  a  drunken 
person  is  held  to  take  upon  himself  the  burden  of  showing 
good  faith.  The  greater  the  degree  of  intoxication,  the 
greater  is  the  necessity  for  exercising  a  scrupulous  good 
faith. 

And  to  the  extent  that  their  powers  may  be  interfered 
with  by  defects,  the  blind  and  the  deaf  stand  within  the 
protection  of  the  law. 


92  ELEMENTARY    I.AW  [§111 

It  is  to  be  noted  that  the  case  of  persons  of  weak 
powers  differs  shghtly  from  the  ordinary  one  of  trust 
in  this:  In  the  usual  case  of  trust,  the  trustee  is  specially 
chosen,  and  extraordinary  confidence  is  actually  reposed 
in  him;  whereas,  in  case  of  persons  of  weak  powers,  it 
often  happens  that  there  was  really  no  confidence  placed 
whatever,  but  in  fact  the  weaker  one  may  have  been 
suspicious,  and  resisting  so  far  as  was  within  his  power. 
The  duty  of  good  faith  to  the  weak  is  not  upon  any 
special  person,  but  upon  any  and  every  person  who  may 
chance  to  deal  with  them.  The  similarity  of  principles 
upon  which  relief  is  granted  makes  it  proper  to  include 
this  topic  under  the  head  of  frauds  in  confi.dential  rela- 
tions. 

Under  confidential  relations,  an  active  duty  is  imposed 
upon  the  one  trusted,  and  it  follows  that  a  fraud  may- 
be as  easily,  and  in  fact  is  most  often,  committed  by 
negative  rather  than  affirmative  conduct.  The  law  holds 
the  trustee  equally  responsible  if  he  fails  to  speak  or  act 
where  he  should  do  so,  as  where  he  engages  in  positive 
misleading  practices.  The  person  for  whose  benefit  the 
trust  exists  need  not  usually  exercise  any  care,  but  may 
without   inquiry   rely  upon  the  trustee. 

§  111.  Fraud  and  deception  between  equals. — As 
has  been  stated,  the  reason  why  so  complete  and  careful 
redress  is  given  for  frauds  done  under  confidential  rela- 
tions is,  that  in  such  relations  the  victim  is  off  his  guard 
and  more  or  less  in  the  power  of  the  wrongdoer.  Where 
no  such  confidential  relation  and  hence  no  misuse  of 
power  exists,  there  is  usually  less  need  for  the  inter- 
position of  the  courts.  The  parties  being  upon  equal 
terms  are  able  and  are  expected  to  use  due  care  in  pro- 
tecting themselves.  As  a  general  rule,  the  law  will  refuse 
aid  to  one  whose  pretended  loss  by  fraud  is  attributable 


§  113]  FRAUD    AND    DICCF.IT 


93 


to  his  own  failure  to  exercise  ordinary  diligence  and 
foresight.  The  question  now  is,  what  are  the  frauds 
which  the  law  will  redress,  and  what  is  the  ordinary 
diligence  required  of  every  one? 

§112.  Definition. — Fraud  or  deceit  is  any  trick, 
collusion,  contrivance,  false  representation  or  underhand 
practice  used  for  the  injury  of  another.  It  need  not  be 
by  words.  Any  positive  conduct  may  be  the  equivalent 
of  a  verbal  statement  and  be  a  deception.  And  in  some 
cases  silence  or  inaction  may  be  sufficient  to  accomplish 
the  fraudulent  purpose. 

§  113.  Fraud  by  silence. — In  transactions  between 
equals,  the  mere  silence  or  inaction  of  one  will  not  be 
regarded  as  a  fraud,  even  though  by  speaking  or  acting 
he  could  have  saved  or  prevented  the  other  from  error 
and  loss.  As  for  instance,  if  one  knows  there  is  a 
valuable  bed  of  ore  upon  another's  land,  and  without  dis- 
closing his  knowdedge  buys  the  land,  such  silence  is  no 
fraud;  for  every  one  is  supposed  to  be  entitled  to  the 
gains  he  may  make  through  superior  knowledge,  so 
long  as  he  does  not  engage  in  underhand  practices  or 
tricks.  If,  however,  the  silence  occurs  in  connection  with 
any  act  or  statement  that  gives  it  point  and  meaning  it 
may  amount  to  a  fraud ;  as,  for  example,  if  one  stands  by 
and  allows  his  property  to  be  sold  as  the  property  of 
another,  or  if  one  is  referred  to  as  knowing  a  statement 
to  be  true,  and  he  remains  silent  in  such  a  way  as  to 
create  the  impression  of  affirmance.  So,  if  one  profess 
to  state  all  of  the  facts  and  intentionally  omit  material 
parts,  it  is  a  fraud.  By  universal  acceptance  there  are 
certain  acts  and  statements  that  presuppose  the  existence 
of  certain  other  facts,  for  instance,  the  giving  of  a  check 
upon  a  bank,   even  though  nothing  be   said,   amounts   to 


94  KLEMENTARY    LAW  [§  114 

the  statement  that  there  are  funds  in  the  bank  for  pay- 
ing it,  and  if  there  are  not,  there  may  be  a  gross  fraud. 
While  a  seller  of  goods  is  not  always  bound  to  inquire 
for  what  purpose  the  goods  are  intended  to  be  used, 
yet  if  it  is  apparent  or  the  seller  is  informed  that  the 
goods  are  to  be  used  for  a  specific  purpose,  the  act  of 
selling  them  will  be  equivalent  to  a  statement  that  they 
are  fit  for  the  use  intended.  In  such  cases  it  is  the  seller's 
duty  to  inform  the  buyer  of  defects  not  open  to  obsei'va- 
tion  of  the  buyer,  and  silence  may  be  a  fraud.  An 
example  of  this  is  tlie  sale  to  a  consumer  of  provisions 
apparently  sound,  but  known  by  the  dealer  to  be  wholly 
unfit.  The  buyer  is  not  negligent  for  omitting  inquiry 
as  to  their  fitness,  and  the  seller's  silence  on  the  point 
amounts  to  a  fraud. 

§  114.  Equal  opportunities  for  knowledge. — Where 
one  party  has  equal  opportunities  with  the  other  for  know- 
ing or  ascertaining  the  truth,  the  general  rule  is  that  he 
must  avail  himself  of  his  opportunities,  or  be  left  remedi- 
less, if  through  his  want  of  diligence  he  is  deceived.  The 
decisions  as  to  what  will  constitute  equal  opportunities 
and  what  degree  of  diligence  will  be  required  are  not 
altogether  harmonious.  It  is  well  settled,  however,  that 
if  one  party  by  any  device  disarms  the  other's  suspicions, 
and  induces  him  to  refrain  from  making  any  examination 
he  would  otherwise  have  made,  relief  will  be  given  for 
the  fraud.  If  the  subject  as  to  which  a  representation  is 
made  is  not  at  hand,  or  if  it  be  of  such  a  nature  that 
an  examination  is  not  practicable,  there  will  be  no  want 
of  diligence  in  relying  upon  the  representations  made, 
but  if  they  are  false  the  transaction  will  be  fraudulent. 

§  115.  Elements  of  fraud. — In  order  to  make  out 
a    cause    of    action    for    fraud    or    deceit,    the    following 


§  117]  FKAUD  AND  i)i:ci:iT  95 

elements  must  concur:  (1)  That  the  defendant  made  a 
false  representation  of  a  material  fact.  (2)  That  the 
defendant  had  knowledge  of  its  falsity.  (3)  That  the 
defendant  intended  it  to  be  acted  upon  by  plaintiff.  (4) 
That  the  plaintiff,  believing  it  true,  acted  upon  it  to  his 
damage. 

These  elements  will  be  considered  in  detail. 

§  116.  Representations. — A  distinction  must  be 
borne  in  mind  between  a  representation  and  a  warranty. 
A  warranty  is  part  of  the  contract  itself,  to  be  enforced 
in  the  same  way  that  the  contract  is  enforced.  A  repre- 
sentation is  not  part  .of  the  contract,  but  is  one  of  the 
reasons  or  inducements  for  making  a  contract.  The 
breach  of  warranty  is  remedied  by  an  action  on  the 
contract.  A  false  representation  is  remedied  as  a  tort. 
Although  upon  the  same  state  of  facts  there  may  be  a 
warranty,  as  well  as  representation,  and  the  party  injured 
may  elect  which  remedy  he  will  pursue,  it  does  not  fol- 
low that  in  all  cases  of  breach  of  warranty  there  has 
been  false  representation.  It  is  sometimes  of  great 
importance  whether  the  cause  of  action  is  upon  one  or 
the  other.  Where  the  transaction  in  question  is  upon 
writings,  the  meaning  intended  by  the  parties  must  gen- 
erally be  gathered  from  the  writings,  and  there  will 
therefore  be  little  difficulty.  Where  the  matter  is  oral, 
however,  the  question  is  more  doubtful,  and  must  be  left 
to  a  jury  to  decide,  in  the  light  of  all  the  surrounding 
circumstances. 

§  117.  Clearness  and  certainty. — In  order  to  be  a 
false  representation,  the  words  or  conduct  used  must  gen- 
erally be  clear  and  certain  and  not  of  vague  and  indefinite 
Import.  They  must  carry  a  sufficiently  definite  meaning, 
so  that  a  man  of  average  intelligence  would  act  on  them. 


96  ELEMENTARY    LAW  [§  118 

Indefinite  and  vague  statements  ought  to  put  an  ordi- 
narily prudent  person  on  his  guard  and  upon  inquiry ; 
and  if  put  on  inquiry  he  can  liave  no  cause  of  action,  for 
if  he  inquired  he  must  have  ascertained,  and  if  he  did  not 
incjuire  his  negligence  defeats  him. 

§  118.  Matter  of  law. — A  misrepresentation  of  a 
matter  of  law  is  usually  not  in  law  a  fraud,  for  it  is 
supposed  that  all  men's  opportunities  for  knowledge  in 
this  respect  are  equal. 

If,  however,  it  is  clear  that  the  opportunities  are  not 
equal,  there  may  be  a  fraud,  as,  for  example,  if  the 
statement  be  made  by  an  attorney. with  intent  to  deceive, 
or  perhaps  if  made  by  any  one  professing  familiarity  with 
the  law  to  one  who  is  clearly  ignorant.  Persons  are 
not  supposed  to  have  equal  opportunity  to  know  foreign 
laws,  and  a  false  statement  in  regard  thereto  may  be  a 
fraud. 

§  119.  Matter  of  opinion. — As  a  rule,  mere  expres- 
sions of  opinion,  even  though  false,  are  not  to  be  regarded 
as  representations  of  fact,  and  will  not  amount  to  fraud. 
The  question  frequently  arises  upon  statements  as  to 
value ;  they  will  usually  be  held  to  be  mere  expressions 
of  opinion,  for  each  party  has  an  equal  right  and  ought 
to  form  his  own  opinion.  If,  however,  one  has  peculiar 
means  of  knowledge,  as  an  expert,  his  false  statement 
of  value  may  be  a  fraud.  And  if  property  is  at  a  distance 
and  a  purchaser  is  induced  to  refrain  from  making  exam- 
ination, but  to  rely  on  the  seller's  false  statement  as  to 
value,  it  may  be  a  fraud.  The  decisions  are  conflicting 
upon  this  subject,  but  it  is  generally  agreed  that  false 
statements  of  any  facts  that  enter  into  the  question  of 
value  will  be  a  fraud,  as  for  example,  misrepresentation 
as  to  cost  or  what  the  price  was  on  previous  sale. 


§  122 J  ifRAUD    AND    DICCEIT  97 

§  120.  Matters  of  fact. — In  order  to  amount  to  a 
fraud  the  false  representation  must  have  been  of  a  fact, 
that  is,  something  existent  or  nonexistent  in  the  present 
or  past.  Representations  as  to  matters  in  the  future 
are  not  actionable  for  fraud,  for  such  things  can  not  be 
said  to  have  existence.  Statements  as  to  the  future  can 
be  no  more  than  promises,  or  mere  predictions.  If  they 
are  construed  as  promises,  they  must  be  enforced  as  con- 
tracts, not  remedied  as  frauds;  and  if  they  are  predic- 
tions they  are  merely  opinions,  which  the  law  will  not 
recognize  as  instruments  of  fraud. 

§  121.  Fraudulent  promises. — Although  the  gen- 
eral rule  is  well  established  that  a  promise  unfulfilled  is 
not  a  fraud  nor  the  evidence  of  fraud,  yet  it  must  be 
admitted  that  in  actual  business  affairs  a  promise  is  often 
used  as  the  principal  means  of  committing  a  deception. 
In  recognition  of  this,  some  of  the  courts,  though  not  all, 
have  attempted  to  escape  the  rigor  of  the  rule.  It  has 
in  some  states  been  held  that,  if  there  is  a  present 
fraudulent  intent  not  to  keep  the  promise,  there  is  a 
fraud;  for  example,  if  one  should  buy  goods  and  promise 
to  pay  for  them,  having  the  secret  intention  not  to  pay 
for  them,  this  would  be  a  false  statement  as  to  a  present 
fact,  namely,  the  intent.  The  decisions  are  not  uniform, 
however.  Many  courts  hold  that  the  law  can  not  recog- 
nize as  a  fact  the  present  intent  as  to  a  future  act. 

§  122.  Materiality. — It  is  essential  that  the  mis- 
representation shall  have  been  material,  that  is,  it  must 
have  influenced  and  been  a  controlling  reason  for  the 
transaction.  It  need  not,  however,  have  been  the  sole  or 
even  the  principal  inducement.  Its  materiality  is  made 
to  appear  sufficiently,  if  in  the  judgment  of  a  reasonable 

7 — Elem.  Law. 


98  ELEMENTARY    LAW  [§  123 

person   the    false   statement   was   one   of   the   reasons    for 
acting. 

§  123.  Falsity. — The  representation  must  have 
been  false,  but  it  need  not  have  been  literally  false.  If 
such  words  were  used  as  would  carry  to  an  average  man 
the  false  meaning,  they  would  be  effective  for  the  fraud- 
ulent purpose.  Indeed  a  fraud  might  be  accomplished 
by  the  use  of  words  true  in  a  literal  sense,  but  false  in 
the  sense  that  would  be  commonly  g'ven  them. 

§  124.  Wrongdoer's  knowledge. — If  one  inno- 
cently and  upon  reasonable  grounds  makes  a  statement, 
he  can  not  be  deemed  guilty  of  a  fraud  even  though  the 
statement  turn  out  to  be  false.  He  must  have  had  some 
knowledge  of  the  falsity.  A  statement  will  be  regarded 
as  false  to  defendant's  knowledge,  (1)  if  he  had  actual 
knowledge,  (2)  if  he  recklessly  stated  something  as  true 
when  he  had  no  grounds  one  way  or  the  other,  (3)  if 
he  stated  something  to  be  true  of  his  own  knowledge 
when  he  had  only  a  belief.  In  each  of  these  cases  the 
defendant  created  in  the  mind  of  the  plaintiff  the  impres- 
sion that  the  defendant  actually  knew  about  the  fact. 
There  is  another  class  in  which  the  defendant  may  actual- 
ly have  had  no  bad  motive  and  yet  be  deemed  guilty  of 
fraud,  namely,  where  he  was  so  specially  situated  that  he 
was  bound  to  know  the  truth. 

§  125.  Wrongdoer's  intent  that  the  representation 
be  acted  on. — It  is  essential,  to  constitute  a  fraud 
in  the  legal  sense,  that  the  representation  shall  have  been 
made  with  the  intent  that  it  should  be  relied  and  acted 
upon.  This  intent  is  to  be  gathered  from  the  circum- 
stances of  the  case.  Where  the  representation  is  made 
between    the    parties    themselves    in    a    transaction,    it    is 


§  127]  FRAUD    AND    DKCElT  99 

presumed  that  it  was  intended  to  be  acted  on,  and  no 
further  proof  is  necessary  in  order  to  show  such  inten- 
tion than  that  the  defendant  made  the  misstatement  with 
knowledge  of  its  falsity.  But  when  the  representation 
is  made  by  a  third  person,  such  presumption  does  not 
arise,  and  there  must  be  some  proof  that  the  person 
intended  the  misstatement  to  be  relied  on,  or  knew  or  had 
reason  to  know  it  was  to  be  acted  on. 

§  126.     Who  entitled  to  rely  on  representations. — 

It  would  be  obvious!}'  impracticable  to  permit  persons  to 
rely  upon  any  and  every  misstatement  they  may  hear  or 
read,  and  to  hold  the  author  responsible  for  ensuing 
damage,  for  business  operations  and  even  social  inter- 
course would  involve  such  risk  as  to  be  unsafe.  The  law 
wisely  restricts  the  right  of  action  for  fraud  to  the  per- 
sons who  were  intended  to  be  influenced  by  the  misrepre- 
sentation. If  one  who  was  not  intended  to  be  influenced 
nevertheless  acts  and  is  injured  by  a  misrepresentation, 
he  is  remediless.  There  are  cases,  however,  where  the 
whole  public  are  intended  to  be  influenced,  as  where 
corporations  publish  false  prospectuses.  In  such  cases 
any  individual  of  the  public  who  relies  thereon  and  is 
injured  has  a  right  of  action  against  the  authors  of  the 
misrepresentation. 

§  127.  Representation  must  have  been  acted  on. — 
It  is  self-evident  that  if  the  misrepresentation  is  not  acted 
upon,  any  damage  that  results  can  not  be  attributed  to  it. 
If  it  appears  that  the  party  complaining  did  not  at  all  rely 
on  the  misstatement,  whether  because  he  did  not  believe 
it,  or  because  he  preferred  to  examine  for  himself,  there 
is  no  right  of  action.  If,  however,  the  misrepresentation 
formed  any  material  part,  even  though  slight,  of  the  in- 


100  E;t,EMENTARY    LAW  [§  128 

ducement    for    entering    into    the    transaction,    the    whole 
is  tainted  with  the  fraud  and  remedy  will  be  given. 

§  128.  Injured  party's  belief. — It  is  essential,  in 
order  to  make  out  a  case  of  fraud  to  show  that  the 
injured  person  believed  the  misstatement  to  be  true.  Of 
course,  if  he  knew  it  was  false,  there  is  an  end  to  the 
action.  And  so,  if  by  the  exercise  of  ordinary  diligence 
he  could  have  known  the  truth,  he  can  not  complain  that 
he  was  defrauded.  If  he  did  not  know  and  was  prevented 
from  exercising  ordinary  diligence  by  any  devices  or 
tricks  of  the  wrongdoer,  his  belief  in  the  false  statement 
would  be  justifiable. 

As  a  general  rule,  a  person  is  entitled  to  rely  on  a 
statement  when  it  is  made  to  him  for  the  purpose  of 
having  him  rely  on  it,  and  he  is  not  chargeable  with 
negligence  if  he  does  not  make  examination  for  himself. 
But  there  are  some  obvious  precautions  that  every  one 
ought  to  take,  as  for  instance,  one  ought  to  read  an 
instrument  before  signing  it,  and  failure  to  do  so  would 
be  such  negligence  as  would  bar  a  recovery  for  fraud 
unless  the  person  is  for  any  reason  unable  to  read  or 
prevented  by  a  clear  trick  from  reading.  And  it  is  held 
that  if  the  opportunity  for  verification  is  immediately  at 
hand,  it  is  one's  duty  to  make  examination  rather  than 
rely  on  a  statement. 

§  129,  Damage. — It  is  an  essential  of  the  cause  of 
action  for  a  fraud  that  there  shall  have  been  some  damage 
done  by  acting  on  the  misrepresentation.  It  is  not  suffi- 
cient that  damage  may  occur  in  the  future;  it  must  have 
occurred. 

§  130.  The  remedies. — The  law  will  redress  a 
fraud,  either  by  way  of  action,  or  by  way  of  defense, 
The  injured  person  may  recover  damages  for  his  injury. 


§  131]  FRAUD  AND  DECEIT  101 

t 

he  may  recover  back  what  he  has  been  defrauded  of,  or 
he  may  have  injunction  against  the  wrongdoer's  bringing 
an  action,  or  against  his  disposing  of  the  property  fraud- 
ulently obtained.  If  an  action  has  been  brought  by  the 
wrongdoer  upon  the  fraudulent  transaction,  the  injured 
person  may  plead  the  fraud  as  a  defense.  In  many  cases 
of  fraud,  the  law  remedies  the  wrong  by  way  of  estoppel, 
that  is  to  say,  it  compels  the  wrongdoer  to  abide  by  his 
false  statement,  and  will  not  permit  him  to  show  it  to  be 
false. 

§  131.  Personal  injuries  through  fraud. — As  has 
been  shown  under  the  head  of  assault  and  battery,  it  is 
usually  a  good  defense  to  show  that  plaintiff  consented 
to  the  act;  but  if  the  consent  was  obtained  by  fraud,  the 
defense  is  overcome.  The  fraud  in  such  case  is  the 
essential  thing  giving  a  right  of  action.  If  one  person 
knowingly  hands  another  an  explosive,  and  the  latter, 
being  ignorant,  is  without  fault  injured,  the  former  is 
guilty  of  a  gross  fraud ;  the  action,  however,  would  be 
for  an  assault  and  battery,  or  for  negligence.  And  so, 
where  one  leaves  exposed  anything  that  is  dangerous, 
whether  on  his  own  premises  or  elsewhere,  in  such  a  man- 
ner as  to  create  an  appearance  of  safety,  and  in  conse- 
quence injury  occurs  to  innocent  persons,  it  is  clear  that 
the  most  important  element  of  wrong  is  the  deception; 
yet  the  action  would  properly  be  considered  as  one  for 
negligence  or  for  nuisance.  Where  fraud  produces  per- 
sonal injury,  there  is  generally  some  other  ground  than 
fraud  upon  which  the  case  may  rest.  It  is  conceivable, 
however,  that  there  might  be  a  case  in  which  a  malevolent 
person  could  by  fraud  alone  cause  direct  personal  injury, 
and  which  would  be  redressed  upon  the  ground  of  fraud 
and  deception.  The  usual  field  for  fraud  is  that  of  prop- 
erty and  contracts. 


CHAPTER  XIII 


NUISANCE 

Sec. 

Sec. 

132. 

How     related     to     negli- 

142. 

gence. 

143. 

133. 

Nuisance  defined. 

144. 

134. 

"Coming  to  a  nuisance." 

145. 

135. 

The  intent  or  motive  im- 

146. 

material. 

147. 

136. 

Care  or  negligence  in  nui- 

sance. 

148. 

137. 

What  may  be  nuisances. 

149. 

138. 

Kinds  of  nuisance. 

150. 

139. 

Public  nuisance. 

151. 

140. 

Private  nuisance. 

152. 

141. 

Nuisances  both  public  and 
private. 

Authorized  nuisances. 
Obstruction   of  highways. 
What  is  a  highway? 
Purprestures. 
What  is  an  obstruction? 
Duration    of   the    obstruc- 
tion. 
Objects  near  the  highway. 
Authorized  obstructions. 
The  special  injury. 
Remedies  for  nuisance. 
Evidence  of  nuisance. 


§  132.  How  related  to  negligence. — Nuisance  may- 
be described  as  some  use  of  one's  property  or  rights 
that  is  carried  beyond  the  limits  which  a  just  regard  for 
the  welfare  of  others  prescribes. 

Negligence  may  be  described  as  the  failure  to  use 
ordinary  care  in  the  performance  of  some  duty  enjoined 
by  law,  whereby  injury  results. 

Although  the  wrongs  of  nuisance  and  of  negligence 
are  in  their  nature  essentially  different  and  require  a 
separate  consideration,  yet  they  have  certain  points  of 
similarity  and  of  difference  which  it  will  be  instructive 
to  bring  into  comparison. 

They  are  alike  in  that  they  may  affect  either  the  per- 
son or  property.  They  are  further  alike  in  that  the 
wrongdoer  does  not  primarily  seek  to  destroy  or  take 
away  the  rights  or  property  of  the  injured  one,  but  the 

i02 


§  133]  NUISANCE  103 

injury  consists  usually  in  only  an  impairment  of  the 
rights  or  property.  The  injury  done  is  indirect,  that  is 
to  say,  the  injury  done  is  either  not  immediately  at  the 
hands  of  the  wrongdoer,  or  not  within  his  purposes,  but 
generally  occurs  as  the  secondary  effect  of  some  wrong- 
ful act.  It  is  not  essential  in  either  that  there  shall  have 
been  any  evil  motive;  indeed,  the  legal  wrong  of  nuisance, 
or  of  negligence,  may  exist,  although  the  actual  intent 
was  praiseworthy. 

Among  the  points  in  which  they  differ,  nuisance  gen- 
erally implies  some  duration  of  wrongdoing;  neghgence 
is  usually  from  single  acts  or  omissions.  In  nuisance  the 
injury  done  may  have  been  intentional  or  unintentional; 
in  negligence  it  is  essential  that  the  precise  injury  shall 
have  been  unintended.  In  nuisance  the  question  is  as  to 
the  lawfulness  of  the  act  itself,  in  other  words  whether 
there  is  any  right  to  do  the  act  at  all;  in  negligence 
the  right  to  do  the  act  is  not  generally  in  dispute,  but  the 
inquiry  is  as  to  the  manner  of  doing  it. 

The  line  of  demarcation  between  the  principles  that 
control  the  two  classes  of  wrong  is  clear,  yet  the  wrongs 
may  coexist  under  the  same  state  of  facts,  and  it  fre- 
quently happens  that  one  is  involved  as  an  essential 
element  of  the  other.  For  example,  a  properly  con- 
structed railroad  crossing  in  a  street  is  not  a  nuisance, 
but  if,  through  negligence  in  keeping  it  in  repair,  it 
becomes  an  obstruction,  it  will  be  a  nuisance. 

§  133.  Nuisance  defined. — The  word  means  "an- 
noyance." A  common  definition  is,  "anything  which 
worketh  hurt,  inconvenience  or  damage  to  another." 
Whatever  is  injurious  to  health,  or  indecent,  or  offensive 
to  the  senses,  or  an  obstruction  to  the  free  use  of  prop- 
erty, so  as  to  essentially  interfere  with  the  comfortable 
enjoyment  of  life  or  property,  is  a  nuisance.     The  defini- 


104  ELEMENTARY    LAW  [§133 

tions  are  unavoidably  too  comprehensive.  Many  wrongs 
that  seem  to  be  included  within  the  bounds  of  the  defini- 
tion of  nuisance  are  clearly  within  other  classes  that  have 
been  heretofore  considered.  An  assault  and  battery  is 
injurious  to  health  and  offensive  to  the  senses;  a  trespass 
interferes  w^ith  the  comfortable  enjoyment  of  property; 
a  libel  w^orketh  hurt,  inconvenience  and  damage,  but  these 
are  not  nuisances.  Only  such  wrongs  falling  within  the 
definition  as  do  not  fall  under  other  distinct  heads  are  to 
be  treated  as  nuisances. 

A  thing  may  be  a  nuisance  (1)  causing  personal  dis- 
comfort, as  by  interfering  with  one's  q;iiet,  or  personal 
freedom,  or  affecting  in  an  injurious  way  the  senses, 
nerves  or  health;  (2)  causing  material  injury  to  prop- 
erty, as  by  loss  of  trade,  deterioration  of  values,  complete 
or  partial  destruction  of  property.  In  determining 
whether  or  not  a  given  thing  is  a  nuisance,  there  will  be 
found  to  be  some  difference  when  viewed  as  to  its  effect 
upon  the  person  or  upon  property. 

Whether  an  act  causing  mere  personal  discomfort  is 
or  is  not  a  nuisance  generally  depends  upon  the  question 
whether,  under  the  circumstances,  it  is  reasonable;  for, 
it  is  obvious  that  the  carrying  on  of  daily  business  opera- 
tions necessarily  involves  some  discomfort  to  neighbors. 
If  one  resides  in  a  manufacturing  district  he  must  be 
content  to  endure  more  annoyance  than  would  be  per- 
missible in  a  district  used  for  residence  purposes  only. 
The  discomforts  are  supposed  to  be  outweighed  by  the 
advantage  of  having  business  conducted  in  such  place. 
To  be  unlawful,  the  act  must  be  one  causing  or  threaten- 
ing some  sensible  physical  annoyance;  if  only  mental 
disquietude  is  involved,  there  will  be  no  nuisance.  The 
annoyance  can  not,  however,  be  allowed  to  exceed  what 
is  reasonable;  whenever  it  does  so  it  will  be  a  nuisance. 
WJiether  the  annoyance  does   exceed   what   is   reasonable 


§  134]  NUISANCE  105 

is  not  to  be  determined  by  the  standard  of  the  people 
specially  affected.  It  is  not  a  question  of  the  notions 
of  any  particular  persons,  whether  they  be  overfastidious 
or  overstupid.  The  standard  to  be  taken  is  that  of 
average  persons  of  the  community. 

When  the  question  is  whether  a  thing  is  a  nuisance 
by  causing  injury  to  property,  the  test  to  be  generally 
applied  is  whether  the  injury  is  visible  or  sensible.  If 
the  injury  is  of  the  visible  character,  eve-n  tho.ugh  slight, 
the  thing  will  be  a  nuisance,  and  it  will  be  no  defense  to 
show  that  the  business  is  being  tonducted  in  as  reasonable 
a  manner  as  possible.  It  is  unlawful  for  one  to  use  his 
property  so  as  to  injure  his  neighbors. 

§  134.  "Coming  to  a  nuisance." — As  has  been 
stated,  the  locality  of  a  business  very  largely  determines 
the  question  as  to  whether  it  is  a  nuisance  or  not.  What 
would  be  a  nuisance  in  a  thickly  populated  place  may  be 
none  at  all  in  a  place  sparsely  settled,  as  in  the  outskirts 
of  a  town.  There  may,  however,  be  a  change  in  the  sur- 
roundings. The  town  by  gradual  and  natural  increase 
may  spread  so  that  the  locality  of  the  business  in  question 
becomes  thickly  populated.  The  question  arises,  what  is 
the  effect  upon  the  business?  The  argument  would  be 
that  there  has  been  no  change  in  the  business,  and  that 
the  act  of  strangers  in  coming  to  the  place  ought  not  to 
make  that  a  nuisance  which  was  not  a  nuisance  before. 
Formerly  this  argument  prevailed  in  the  courts,  and  it 
was  held  there  was  no  right  of  action.  Now,  however, 
the  law  is  settled  the  other  way.  It  is  uniformly  held 
that  the  author  of  a  nuisance  is  not  protected  by  the  fact 
that  he  was  on  the  ground  first,  and  that  the  injured  per- 
son "came  to  the  nuisance."  The  reason  for  the  rule  as 
now  established  is  that  the  owner  of  the  vacant  land  is 


106  ELEMENTARY    EAW  [§  135 

also  entitled  to  protection,  and   if  his  vendees  must  take 
subject  to  the  nuisance,  the  value  of  his  land  is  impaired. 

§  135.  The  intent  or  motive  immaterial. — Inas- 
much as  the  test  for  nuisance  is  whether  the  thing  done 
is  lawful  or  unlawful,  it  is  generally  immaterial  what 
was  the  motive.  If  the  act  be  one  that  it  is  lawful  to 
do,  it  can  not  be  deemed  a  nuisance  merely  because  it 
was  done  from  bad  motives.  For  example,  every  man  has 
a  right  to  keep  surface  water  on  his  own  land,  and  even 
though  his  doing  so  necessarily  injures  lower  lying  land 
that  formerly  depended  on  it  for  irrigation,  there  can 
be  no  action  for  the  injury.  The  converse  also  holds 
good.  If  the  act  be  one  that  does  in  fact  create  a 
nuisance,  it  is  actionable  even  though  done  with  the  best 
motives,  and  even  though  it  is  highly  beneficial  or  neces- 
sary to  the  public. 

The  motive  is,  however,  considered  to  some  degree 
where  the  act  in  question  is  onp  which  merely  affects 
personal  comfort,  so  that  a  noise  that  is  necessary  to  a 
proper  business  may  be  held  to  be  no  nuisance,  when  if 
the  same  noise  were  wantonly  made  for  the  express  pur- 
pose of  annoying  it  would  be  a  nuisance.  And  while 
malice  is  not  an  essential  of  the  cause  of  action  for 
nuisance,  it  may  always  be  involved  upon  the  question  of 
exemplary  damages. 

§  136.  Care  or  negligence  in  nuisance. — In  nui- 
sance, the  question  of  care  or  negligence  in  doing  the 
act  is  not  necessarily  involved.  If  the  act  be  of  such  a 
character  that  it  amounts  to  a  nuisance,  it  is  actionable 
even  though  the  highest  degree  of  care  has  been  exercised. 
For  instance,  where  a  factory  emits  poisonous  gas,  it 
is  no  answer  to  show  that  the  business  can  not  be  other- 
wise  conducted*  and   that   the   highest   degree   of   care   is 


§  137]  NUISANCE  107 

used  to  prevent  the  escape  of  the  gas.  Where,  however, 
the  question  is  of  a  nuisance  affecting  only  the  physical 
comfort,  it  is  sometimes  of  controlling  importance 
whether  due  care  has  been  exercised.  Care  is  in  such 
cases  involved  in  the  same  way  that  intent  or  motive 
may  be  involved.  For  example,  the  smoke  from  a  mill 
may  be  declared  to  be  a  nuisance  where  it  appears  that 
by  the  exercise  of  ordinary  care  it  could  be  rendered 
almost  inoffensive. 

Where  any  state  of  affairs  is  lawful  and  inoffensive, 
and  becomes  offensive  only  by  reason  of  its  not  being 
maintained  in  proper  condition,  the  question  of  care  or 
negligence  is  important.  In  such  cases  the  unlawfulness 
of  the  nuisance  would  consist  in  the  negligence  of  its 
origin,  and  if  there  was  no  negligence  there  would  be 
no  liability  for  nuisance,  for  it  would  be  a  highly  incon- 
venient rule  that  would  hold  a  man  culpable  where  in 
spite  of  care  and  diligence  his  property  suddenly  becomes 
injurious. 

§  137.  What  may  be  nuisances. — Reasonable  noises 
are  not  nuisances.  In  order  to  become  unlawful,  they 
must  be  unreasonable  in  their  character,  or  be  made  at 
unreasonable  hours.  The  ringing  of  church  bells,  if  in 
the  daytime,  has  been  held  to  be  not  a  nuisance,  but  if 
in  the  night-time  has  been  held  to  be  a  nuisance.  The 
noises  of  a  drinking-saloon  were  held  to  be  a  nuisance 
by  day  or  night.  The  blowing  of  a  trumpet  at  night  or 
the  barking  of  a  dog  at  night  have  been  held  to  be 
nuisances. 

Smoke,  dust,  smells  and  noxious  gases,  causing 
sensible  and  physical  discomfort,  are  nuisances.  It  is 
not  necessary  to  show  that  health  is  being  impaired 
thereby,  the  discomfort  is  sufficient  to  ^x  the  character 
of    the    act    as    a    nuisance.      Fumes    from    burning    old 


108  ELEMENTARY    EAW  [§  138 

clothes,  smoke  from  brick  kilns,  dead  animals  left  un- 
buried,  cattle-yards  and  pig-pens,  cess-pools,  vaults,  livery- 
stables,  gas  works,  pools  of  stagnant  water,  excessive  heat 
maintained  to  the  discomfort  of  neighbors,  collecting 
crowds  in  the  streets  by  means  of  exhibitions,  may  be 
nuisances. 

Things  dangerous  may  be  nuisances,  even  before  any 
actual  injury  has  occurred,  as  the  pesthouse  in  a  populous 
district,  the  keeping  of  explosives  or  inflammable  things 
in  such  a  way  as  to  be  dangerous,  fires  negligently  kept, 
blasting  rocks,  setting  spring  guns  and  traps,  whether  on 
one's  own  land  or  not,  provided  they  are  so  placed  as  to 
menace  the  safety  of  other  persons. 

Polluting  the  water  of  springs  or  streams,  so  as  to 
render  it  unfit  for  use  or  offensive  to  the  senses,  is  a 
nuisance.  The  same  is  true  of  underground  streams  and 
percolating  water. 

Interfering  with  the  natural  flow  of  water  in  regular 
channels,  whether  by  unduly  increasing  or  diminishing  it, 
may  be  a  nuisance.  One  may  not  dam  up  a  stream  so 
as  to  throw  the  water  back  upon  his  neighbor.  As  to 
surface  water,  not  in  regular  channels,  it  is  generally  the 
law  that  one  may  keep  it  all  upon  his  own  land  if  he 
wish,  but  whether  he  can  cause  overflows  by  building 
embankments  on  his  own  land  to  prevent  the  surface 
water  coming  from  his  neighbor's  land,  is  a  disputed 
question.  In  some  states  it  is  held  to  be  a  nuisance,  in 
others  to  be  lawful. 

Obstructing  travel  upon  highways,  whether  streets  or 
waterways,  is  a  nuisance. 

§  138.  Kinds  of  nuisances. — Considered  with  refer- 
ence to  the  persons  affected  by  the  unlawful  act,  a 
nuisance  may  be  either:  (1)  Public  or  common.  (2) 
Private.       (3)    Both    public    and    private.      Whether    the 


§  141]  NUISANCE  109 

nuisance  be  one  or  the  other  depends  not  on  the  character 
of  the  act,  but  upon  the  circumstances  under  which  it 
is  done  and  the  effect  produced. 

§  139.  Public  nuisance. — A  public  or  common 
nuisance  is  punishable  by  the  state  and  not  by  civil  suit 
of  individuals.  It  may  be  committed  (1)  upon  the  pub- 
lic premises,  or  (2)  upon  private  premises  in  such  man- 
ner as  to  interfere  with  the  public.  Its  distinctive  feature 
is  that  it  affects  the  community  in  general,  and  that  indi- 
viduals affected  do  not  sustain  any  peculiar  or  especial 
injury. 

An  example  of  nuisance  which  is  public  only  would 
be  an  indecent  exhibition  in  a  public  park. 

§  140.  Private  nuisance. — A  private  nuisance  is  one 
that  affects  certain  individuals  only,  or  certain  individuals  in 
a  peculiar  or  especial  way.  A  purely  private  nuisance  must 
generally  be  committed  or  maintained  upon  private  premises. 
It  is  redressed  by  civil  suit  of  the  person  injured,  and 
not  by  indictment.  An  example  of  purely  private  nuisance 
would  be  the  injury  of  a  neighbor's  shade  trees  by 
noxious  gases  from  a  factory. 

§  141.  Nuisances  both  public  and  private. — The 
unlawful  act  may  be  at  one  and  the  same  time  a  public 
and  a  private  nuisance,  according  as  it  is  complained  of 
by  the  state  or  by  the  individuals  injured.  The  state  may 
punish  by  indictment,  and  the  individual  injured  may  also 
recover  in  a  civil  suit.  Neither  remedy  is  exclusive  of 
the  other.  As  an  example  of  nuisance  having  this 
double  character,  may  be  given  the  pollution  of  a  public 
drinking  place ;  the  public  would  be  prevented  from  enjoy- 
ing the  water,  and  there  would  be  a  public  nuisance;  if 
any  individual  should  inadvertently  drink  of  the  polluted 


110  ELEMENTARY    LAW  [§  142 

water  and  be  thereby  made  sick,  he  would  have  a  right 
of  action  as  for  a  private  nuisance. 

§  142.  Authorized  nuisances. — The  right  to  main- 
tain a  strictly  private  nuisance  may  be  acquired  by  twenty 
years  uninterrupted  continuance  of  the  nuisance.  No 
shorter  time  will  be  sufficient  to  give  any  rights.  But, 
when  the  full  time  has  elapsed,  the  right  to  maintain  the 
nuisance  is  complete,  and  it  can  not  then  be  lost  by  any 
discontinuance  short  of  twenty  years.  If  the  nuisance  be 
public,  no  right  to  maintain  it  can  be  acquired  by  lapse 
of  time,  and  this  is  true,  even  though  it  be  also  a  private 
nuisance. 

What  would  otherwise  be  nuisances  may  sometimes 
be  authorized  and  made  lawful  by  the  act  of  the  state. 
As  to  nuisances  strictly  public,  no  one  has  the  right  to 
complain  except  the  state,  and  the  legislature  may  sur- 
render this  right  b}'^  declaring  the  act  in  question  to  be 
lawful  or  by  commanding  such  act  to  be  done.  Any  act 
done  under  authority  of  an  act  of  the  legislature  can  not 
be  a  public  nuisance.  In  case  of  private  nuisances  the 
power  of  the  legislature  does  not  extend  so  far.  The 
legislature  can  not  make  lawful  any  act  the  effect  of 
which  would  be  to  take  away  or  impair  the  rights  of 
property  without  compensation  therefor.  Subject  to  this 
limitation,  it  may,  however,  declare  what  shall  or  shall 
not  be  private  nuisances,  and  the  enactments  will  be  valid. 

§  143.  Obstruction  of  highways. — Nuisance  by  ob- 
structing and  interfering  with  highways  may  be  either 
public  or  private  in  effect,  or  may  be  both.  Whether  it 
is  punishable  criminally  as  a  public  nuisance  is  generally 
a  matter  of  statutory  enactment.  In  so  far  as  the  ques- 
tion of  private  nuisance  by  obstruction  of  highways  is 
concerned,  the  well-settled  rule  is,  that  whoever,  without 


§  145]  NUISANCE  HI 

special  authority,  materially  obstructs  a  highway  or  ren- 
ders its  use  hazardous  is  liable  to  one  who  sustains  a 
special  injury  thereby.  The  rule  raises  the  following 
questions,  to  be  considered  in  order:  (1)  What  is  a 
highway?  (2)  What  is  obstructing  or  rendering  haz- 
ardous? (3)  What  is  without  special  authority?  (4) 
What  is  special  injury? 

§  144.  What  is  a  highway. — It  is  the  general  name 
for  all  kinds  of  public  ways,  whether  carriage  ways, 
bridle  ways,  foot  ways,  or  navigable  streams.  It  also  in- 
cludes bridges,  turnpikes,  railroads,  canals  and  ferries, 
but  the  public  rights  in  these  cases  are  complicated  with 
the  rights  of  the  persons  or  corporations  controlling  the 
ways,  so  that  many  other  principles  are  involved  in  their 
obstruction. 

The  public  highways  belong  to  the  public  for  use 
from  side  to  side  and  from  end  to  end.  They  are  entitled 
not  only  to  free  passage  along  the  highway,  but  over  any 
portion  of   it   not   in  actual   use  of  some   other  traveler. 

§  145.  Purprestures. — As  already  intimated,  any- 
thing that  prevents  or  interferes  with  the  free  passage 
by  travelers  is  an  obstruction.  If  the  obstruction  consist 
in  enclosing  a  part  or  all  of  the  public  premises  and  ex- 
cluding travelers,  it  is  called  a  purpresture.  A  purpresture 
is  something  more  than  a  mere  nuisance  in  that  it  in- 
volves not  merely  annoyance  to  the  public,  but  also  a 
taking  of  public  property.  Hence  although  to  constitute 
a  mere  nuisance  it  is  necessary  to  show  that  some  one 
or  more  have  suffered  actual  injury  or  annoyance,  the 
wrong  of  purpresture  may  be  complete  without  putting 
the  public  or  any  person  to  any  inconvenience  whatever. 
All  the  other  elements  of  a  nuisance  must  be  shown. 
Following    may    be    given    as    examples    of    purpresture : 


112  ELEMENTARY    LAW  [§  146 

Fencing   in   a   part   of   the   highway,   building   a  house   in 
the  street,  constructing  a  stairway  to  overhang  an  alley. 

§  146.  What  is  an  obstruction. — An  obstruction 
need  not  involve  taking  possession  of  the  highway.  It 
is  anything  beyond  a  reasonable  use  of  the  highway  for 
purpose  of  passage,  tliat  interferes  with  travel.  A  rail- 
road track  in  the  street,  posts  or  railings  along  sidewalks 
may  be  nuisances. 

It  is  not  essential  that  there  shall  be  a  physical 
obstruction  of  the  surface  of  the  highway.  Any  thing 
above  or  below  or  on  the  surface  that  interferes  with 
the  free  use  of  the  surface  may  be  a  nuisance.  Cornices 
overhanging  a  sidewalk  and  bay-windows  projecting  high 
above  the  sidewalk  have  been  held  to  be  obstructions. 

§  147.  Duration  of  the  obstruction. — The  obstruc- 
tion need  not  be  permanent  in  character  in  order  to  con- 
stitute a  nuisance.  It  is  sufficient  if  the  highway  be  used 
for  an  improper  purpose  or  for  an  unreasonable  time. 
Placing  logs  in  the  street  over  night,  blocking  the  way  by 
loading  and  unloading  goods  if  unreasonably  prolonged, 
a  temporary  ditch  dug,  or  a  rope  temporarily  stretched 
across  a  street,  using  the  highway  for  pasturing  cattle, 
may  be  nuisances. 

§  148.  Objects  near  the  highway. — The  obstruction 
need  not  be  within  the  bounds  of  the  highway.  If  the 
object  be  so  near  as  to  interfere  with  and  endanger 
travel,  it  is  an  obstruction.  The  ruinous  wall  of  a  burned 
building,  standing  on  private  premises,  but  menacing 
travelers  on  the  highway,  is  a  nuisance,  and  the  same  is 
true  of  objects  near  a  highway  calculated  to  frighten 
horses. 


150]  NUISANCE 


113 


§  149.  Authorized  obstructions. — As  has  been 
shown,  the  state  by  its  legislature  may  legitimate  what 
would  otherwise  be  a  nuisance.  And  so  the  state  may 
for  the  pubhc  benefit  legitimate  obstructions  in  highways. 
But  even  when  so  authorized  by  the  state,  if  the  obstruc- 
tion amounts  to  a  taking  of  private  property,  or  impos- 
ing additional  servitudes  thereon,  the  property-owner 
is  entitled  to  full  compensation  therefor.  If  the  authority 
is  strictly  followed,  the  obstruction  will  not  be  a  nuisance. 
For  instance,  an  unauthorized  railroad  track  would  be 
a  nuisance  in  a  street.  If  the  track  were  built  properly 
and  under  authority  of  the  statute,  it  would  be  no 
nuisance,  but  the  adjacent  owners  could  recover  for  the 
added  servitude.  If,  instead  of  being  built  properly,  the 
railroad  track  should,  contrary  to  authority,  be  con- 
structed many  feet  higher  than  the  grade  of  the  street, 
it  would  be  a  nuisance.  If  an  individual  who  has  the 
right  to  complain  of  an  obstruction  sanctions  it,  he  can 
not  afterwards  object  to  it,  as  if  a  property-owner  con- 
sents to  a  railroad  in  a  street,  he  can  not  afterwards 
have  it  abated  as  a  nuisance,  and  sometimes  he  is  pre- 
cluded from  recovering  damages  therefor. 

If  an  authorized  obstruction  is  suffered  to  become 
ruinous  or  out  of  repair,  it  may  be  called  a  nuisance,  but 
the  wrong  is  primarily  one  of  negligence. 

§  150.  The  special  injury. — In  order  to  give  a  pri- 
vate right  of  action  on  account  of  an  obstruction,  there 
must  be  an  injury  that  is  special  to  the  individual  injured. 
If  the  injury  is  the  same  as  is  suffered  by  every  one  of 
the  public,  there  can  be  no  private  right  of  action.  In 
order  to  be  special  in  the  present  sense,  it  is  not  enough 
that  the  injury  be  greater  in  degree  than  that  suffered 
by  the  public,  but  it  must  be  different  in  kind.     So,   for 

mere  delay   in  a  journey,   or  being  compelled  to  take   a 
8 — Elem.  Law. 


114  ELEMl^NTARY    LAW  [§151 

more  circuitous  route  on  account  of  an  obstruction,  the 
weight  of  authority  is  that  no  action  can  be  maintained, 
for  any  member  of  the  public  would  suffer  the  same  in- 
convenience. But  if  through  the  delay  the  traveler  sus- 
tains a  peculiar  loss,  as  the  loss  of  a  market,  deterioration 
of  perishable  goods  and  the  like,  he  may  recover.  If 
one's  access  to  his  property  is  cut  off,  it  is  a  special  in- 
jury. And  so  are  injuries  to  person  or  property  received 
from  collision  with  the  obstruction. 

§  151.  Remedies  for  nuisance. — Public  or  common 
nuisances  are  redressed  by  a  criminal  action,  and  it  is 
often  provided  that  judgment  may  be  given  to  abate  the 
nuisance.     The  remedies   for  private  nuisance  are  three : 

(1)  Abatement  by  the  act  of  the  person  injured.  If 
he  avails  himself  of  this  summary  remedy  he  takes  the 
risk  of  its  being  a  nuisance,  and  will  be  liable  for  his 
mistake  if  it  is  not,  and  he  is  bound  to  act  moderately 
and  can  not  commit  a  breach  of  the  peace.  A  private 
person  is  not  justified  in  abating  a  public  nuisance,  unless 
it  is  also  a  private  nuisance  as  to  him. 

(2)  Damages.  The  person  injured  may  recover  his 
actual  damages  from  the  wrongdoer,  and  if  the  nuisance 
be  malicious  or  wanton  he  may  also  recover  exemplary 
damages.  The  remedy  by  action  for  damages  is  not 
barred  by  the  person  having  abated  the  nuisance  by  his 
own  act.     Both  remedies  may  be  pursued. 

(3)  Injunction.  It  often  happens  that  a  judgment  in 
damages  will  be  an  inadequate  remedy,  and  in  such  cases 
a  court  of  equity  will  grant  an  injunction  against  the 
maintenance  of  the  nuisance.  This  remedy  will  be  given, 
however,  only  where  the  injury  is  of  a  serious  and 
permanent  character,  and  will  usually  be  withheld  where 
the  nuisance  is  a  business  lawfully  conducted,  and  the 
complainant  will  be  left  to  his  action  for  damages. 


§  152]  nuisance:     .  115 

§  152.  Evidence  ot  nuisance. — Ordinarily  the  bur- 
den is  upon  the  plaintiff  to  show  the  existence  of  the 
nuisance  and  also  what  the  injurious  effect  is.  Some 
things,  however,  are  so  uniformly  and  under  all  circum- 
stances offensive  that  the  courts  take  notice  without  evi- 
dence that  they  are  nuisances.  These  are  called  nuisances 
per  se.  Formerly,  many  things  were  regarded  as 
nuisances  per  se,  as  things  prejudicial  to  public  morals, 
disreputable  houses,  saloons,  things  dangerous  to  life, 
powder  magazines,  nitroglycerine  works,  and  all  material 
obstructions  in  highways.  The  tendency  of  the  courts 
now  is  to  restrict  rather  than  extend  the  limits  of  the 
phrase  nuisance  per  se.  And  in  many  states  some 
things  that  were  formerly  nuisances  per  se  are  not  now 
so  considered.  But  wherever  the  restriction  has  taken 
place,  such  nuisances  are  now  regarded  as  prima  facie 
nuisances,  that  is,  instead  of  requiring  the  plaintiff  to 
show  that  they  are  injurious,  the  courts  presume  them 
to  be  and  require  the  defendant  to  bear  the  burden  of 
showing  that  they  are  not  injurious. 


CHAPTER  XIV 


NEGLIGENCE 


Sec. 

Sec. 

153. 

Actionable    negligence. 

171. 

154. 

Contract  or  tort. 

155. 

Elements      of      actionable 

172. 

negligence. 

173. 

156. 

Definition     of     negligence. 

174. 

157. 

The  inadvertence. 

175. 

158. 

Inevitable    accident. 

159. 

Ordinary    care    under    the 
circumstances. 

176. 

160. 

No  degrees  in  negligence. 

177. 

161. 

Acts  or  omissions. 

162. 

Legally    responsible    per- 

son. 

178. 

163. 

Intoxication. 

164. 

Physical  infirmity. 

179. 

165. 

The  person   to  w^hom  the 

180. 

duty  is  owing. 

181. 

166. 

The  duty. 

167. 

The  duty  implied  by  law. 

182. 

168. 

The  damage. 

169. 

Cause  and  efifect. 

183. 

170. 

The  legal  connection. 

Definition  of  proximate 
cause. 

Plaintiff's  own  conduct. 

Plaintiff's  unlawful  act. 

Contributory      negligence. 

Tests  of  contributory  neg- 
ligence. 

Plaintiff's  knowledge  of 
danger. 

Danger  incurred  to  save 
life  or  in  discharge  of 
duty. 

Persons  of  defective  pow- 
ers. 

Misleading  conduct. 

Imputable  negligence. 

Passenger  and  carrier — 
Imputed  negligence. 

Children — Imputed  negli- 
gence. 

Presumptions  as  to  negli- 


§  153.  Actionable  negligence. — The  word  negli- 
gence as  commonly  used  covers  all  cases  of  omission  to 
do  that  which  ought  to  be  done,  but  in  the  legal  sense 
the  meaning  must  be  narrowed.  The  law  does  not  give 
a  remedy  for  every  case  of  omission.  It  is  only  as  to 
such  as  the  law  redresses  by  way  of  action  or  defense 
that  the  term  negligence  should  be  applied. 


§  154.     Contract    or    tort. — Negligence    may    exist, 
( 1 )    as  a  pure  tort,   that   is,   a  wrong  not  arising  out  of 

116 


§  157]  NEGLIGENCE  117 

contract;  (2)  as  a  ton  connected  with  a  contract,  but 
which  may  be  treated  as  a  wrong  independent  of  contract; 
and  (3)  as  a  mere  unintended  breach  of  a  contract  in- 
volving no  tort.  Cases  of  the  latter  class,  so  far  as  legal 
redress  is  concerned,  will  amount  to  the  same  as  any 
other  breach  of  contract,  and  will  therefore  be  considered 
in  the  chapter  on  contracts.  In  the  second  class  the 
person  injured  usually  has  the  right  to  choose  whether 
he  will  treat  the  wrong  as  a  mere  breach  of  contract  or 
as  a  tort,  and  if  he'  chooses  the  former,  the  principles  of 
contract  control,  if  the  latter  the  principles  of  negligence. 
Under  the  head  of  negligence,  therefore,  will  be  here 
considered  only  wrongs  of  the  first  class,  and  such  wrongs 
in  the  second  class  as  are  treated  as  torts. 

§  155.  Elements  of  actionable  negligence. — In  or- 
der to  constitute  negligence  there  must  be:  (1)  A  legal 
duty  to  use  care.  (2)  A  breach  of  that  duty.  (3) 
Absence  of  distinct  intention  to  produce  the  precise 
damage. 

To  make  it  actionable  there  must  be  also:  (4)  Dam- 
age to  the  plaintiff.  (5)  The  damage  must  be  the 
proximate  result. 

§  156.  Definition  of  negligence. — Actionable  negli- 
igence  is  the  inadvertent  failure  of  a  legally  responsible 
person  to  use  ordinary  care  under  the  circumstances  in 
observing  or  performing  a  noncontractual  duty  implied 
by  law,  which  failure  is  the  proximate  cause  of  injury 
to  a  person  to  whom  the  duty  is  due.  The  elements  of 
the  definition  must  be  considered   in  detail. 

§  157.  The  inadvertence. — A  conscious  failure  to 
use  ordinary  care  is  a  wilful  act,  from  which  the  law 
presumes   an   intent   to    injure.      The    wilful    doing   of   a 


118  ELEMENTARY    LAW  [§  158 

wrongful  act  implies  malice.  When  such  a  wrong  occurs, 
the  guilty  person  is  liable  for  all  the  damages  that  result, 
even  for  what  would  be  deemed  too  remote  if  the  act 
had  not  been  wilful.  Such  a  wrong  is  not  one  of  negli- 
gence. The  phrase,  "wilful  negligence,"  though  it  has 
been  much  used,  is  by  the  best  authorities  regarded  to  be 
a  contradiction  in  terms.  It  is  true,  however,  that  many 
wrongs  are  very  close  upon  the  line  dividing  wilfulness 
and  negligence,  and  whenever  there  has  been  wilfulness 
the  plaintiff  has  the  option  to  treat  it  as  negligence.  He 
may  understate  his  case  and  it  would  not  be  for  the 
defendant  to  escape  by  showing  his  act  to  have  been 
malicious.  The  uniform  rule  is  that  in  an  action  for 
negligence  there  can  be  no  malicious  intent,  or  wilfulness 
involved. 

§  158.  Inevitable  accident. — Inadvertence  does  not, 
however,  mean  that  the  injury  could  not  have  been  fore- 
seen. It  is  not  equivalent  to  inevitable  accident.  The 
latter  occurs  when  the  cause  of  the  injury  is  so  unusual 
that  human  foresight  could  not  have  foreseen  nor 
guarded  against  it.  To  be  guilty  of  negligence,  the  per- 
son must  have  been  in  some  way  in  fault,  otherwise  the 
accident  is,  as  to  him,  inevitable.  For  instance,  unknow- 
ingly carrying  an  explosive  and  handling  it  on  the  theory 
that  it  is  innocent  would  not  be  negligence  in  the  carrier. 
But  if  inevitable  accident  combine  with  any  negligence 
in  the  person  charged  he  will  be  liable. 

§  159.     Ordinary   care   under   the   circumstances. — 

There  can  be  no  negligence  unless  there  has  been  an 
absence  of  that  degree  of  care  which  a  person  of  ordinary 
prudence  is  presumed  to  use  under  the  particular  circum- 
stances to  avoid  injury.  Such  care  must  be  in  proportion 
to  the  danger  to  be  avoided  and  the  consequences  involved 


§  161]  negligence;  119 

in  its  neglect.  What  is  and  what  is  not  the  requisite  care 
must  be  determined  from  all  the  facts  in  each  case,  and 
from  the  nature  of  the  duty  owing.  The  same  facts  may 
at  the  same  time  amount  to  ordinary  care  as  to  one 
person  and  not  as  to  another.  For  instance,  if  a  land- 
owner has  an  unguarded  pit  on  his  land,  and  two  persons 
fall  into  it,  one  of  whom  is  a  trespasser  and  the  other 
an  invited  guest,  as  to  the  former  there  would  be  no  neg- 
ligence, while  as  to  the  latter  there  would  be. 

§  160.  No  degrees  in  negligence. — The  test  is 
always  whether  ordinary  care  under  the  circumstances 
has  been  exercised.  The  classification  into  gross,  ordinary 
and  slight  negligence  or  care  is  confusing,  and  is  of  no 
substantial  benefit  to  the  inquiry  in  any  special  case.  It 
is  practically  impossible  to  draw  a  line  between  the 
classes  and  the  classification,  though  formerly  made  by 
the  courts,  is  now  almost  universally  abandoned.  It  is 
true  that  the  duty  owing  may  be  greater  in  one  case 
than  another,  and  the  same  act  may  be  sufficient  to  dis- 
charge the  duty  in  one  case  which  would  be  insufficient 
in  another.  Hence,  the  inquiry  must  always  first  be  as 
to  what  is  the  duty  owing.  That  settled,  the  only  ques- 
tion is,  was  ordinary  care  exercised  in  the  performance 
of  that  duty? 

§  161.  Acts  or  omissions. — Negligence  may  consist 
in  either  an  act  or  an  omission  to  act.  In  other  words, 
ordinary  care  under  the  circumstances  may  require  one 
to  do  an  act,  or  to  refrain  from  doing  an  act.  The  ques- 
tion is,  what  is  the  duty,  positive  or  negative,  and  which- 
ever it  is,  has  the  duty  been  violated?  In  a  wider  sense 
every  negligence  is  an  omission,  that  is,  a  failure  to  dis- 
charge a  duty  owing. 


120  ELEMENTARY    LAW  [§  162 

§  162.  Legally  responsible  person. — If  a  person  is 
wholly  incapable  of  exercising  care  in  its  legal  sense,  he 
can  not  be  held  guilty  of  negligence,  and  upon  principle 
ought  never  to  be  held  liable  in  damages  for  his  act. 
There  is  an  apparent  exception  in  case  of  infants  and 
lunatics,  who,  according  to  the  statement  of  some  writers, 
are  liable  for  all  their  torts,  including  negligence.  In 
most  of  the  decided  cases  the  infant  or  insane  had  capac- 
ity for  some  degree  of  care,  and  should  have  been  held 
liable  for  failing  to  exercise  such  prudence  as  was  pos- 
sessed. In  the  remaining  cases,  where  the  Infant  or  in- 
sane was  wholly  incapacitated,  the  recovery  of  damages 
can  be  sustained,  not  on  the  ground  of  negligence  in  the 
afflicted  one,  but  in  his  parents  or  guardians.  The  true 
rule  is  believed  to  be  that  a  person  incapable  of  exercis- 
ing care  is  not  liable  for  a  failure  to  do  so,  but  if  there 
is  any  capacity  at  all,  he  must  exercise  such  care  as  he 
is  capable  of. 

Consistent  with  the  rule  are  the  cases  of  unconscious 
agents,  for  example,  persons  who  without  fault  do  not 
and  can  not  know  the  danger,  and  act  with  only  such 
care  as  their  knowledge  dictates.  Persons  under  duress 
are  not  free  to  exercise  any  care,  hence  are  not  guilty 
of  negligence,  but  this  must  be  confined  to  cases  where 
free  will  is  wholly  taken  away.  Persons  acting  under 
sudden  alarm  from  any  cause  that  robs  them  of  posses- 
sion of  their  senses  are  not  legally  responsible. 

§  163.  Intoxication. — Voluntary  intoxication  does 
not  relieve  one  from  exercising  all  the  care  he  should 
have  exercised  if  sober.  His  negligence  begins  with  his 
becoming  intoxicated,  and  he  is  responsible  for  the  con- 
sequences. Instead  of  being  an  excuse,  intoxication  has 
been  held  to  be  evidence  tending  to  prove  negligence. 


§  166]  NEGLIGENCE  121 

§  164.  Physical  infirmity. — Adults  of  sound  mind 
are,  so  far  as  negligence  is  concerned,  presumed  to  be 
equally  capable  of  exercising  ordinary  care.  A  man  of 
dull  mind  is  charged  with  the  same  kind  and  degree  of 
care  as  is  a  man  of  brilliant  intellect.  Physical  infirmities, 
however,  must  be  taken  into  consideration.  No  one  is 
bound  for  a  failure  to  exercise  a  sense  that  he  has  not. 
But  he  is  bound  to  make  up  for  his  defect  as  best  he 
can  by  his  other  senses.  While  it  can  not  be  stated  as 
a  rule  that  less  care  is  required  of  a  woman  than  of  a 
man,  it  very  often  happens,  especially  in  cases  involving 
physical  or  nervous  power,  that  sex  is  of  importance  in 
determining  what  is  ordinary  care  under  the  circum- 
stances. 

§  165.  The  person  to  whom  the  duty  is  owing. — In 
order  to  constitute  actionable  negligence  there  must  have 
been  a  duty  owing  to  the  party  complaining.  The  fact 
that  there  has  been  a  violation  of  a  duty  owing  to  one 
person  does  not  give  another  person  a  right  of  action 
therefor,  even  though  the  latter  receive  injury.  For 
instance,  a  landowner  owes  the  duty  to  his  invited  guests 
to  guard  them  against  the  danger  of  a  pit  on  his  land, 
but  he  owes  no  such  duty  to  a  trespasser,  and  will  not 
be  liable  if  the  latter  falls  into  the  pit. 

§  166.  The  duty. — Of  course,  if  the  act  in  question 
does  not  violate  any  duty,  there  can  be  no  action.  For 
example,  a  traveler  on  a  highway,  for  his  own  conveni- 
ence, makes  a  temporary  bridge  over  a  ditch ;  he  owes 
no  duty  to  any  one  to  build  the  bridge  in  any  particular 
way,  or  to  build  it  at  all.  Hence  he  is  not  liable  to 
another  traveler  who  afterwards  tries  to  cross  and  is 
injured. 


122  ELEMENTARY    LAW  [§  167 

§  167.  The  duty  implied  by  law. — In  order  to  be 
actionable  as  negligence,  the  duty  that  is  violated  must 
be  one  implied  by  law,  independent  of  contract.  Though 
there  may  be  a  contract  involved,  yet  the  wrong  done 
must  be  so  far  separable  from  the  contract  as  to  give  an 
independent  right  of  action.  For  example,  a  man  makes 
a  contract  v^ath  a  railroad  company  to  carry  him  and  his 
servant.  There  is  no  contract  with  the  servant.  But 
there  is  the  duty  implied  by  law  from  the  relation  of 
passenger  and  carrier.  For  any  injury  the  servant  may 
recover,  because  this  duty  implied  by  law  has  been 
violated.  And  the  master,  if  injured,  may  recover  dam- 
ages on  the  same  ground.  Though  there  was  a  contract 
with  the  master,  there  was  also  the  duty  implied  by  law 
from  the  relation  of  passenger  and  carrier.  Hence  the 
master  could  recover  for  the  negligence  as  a  tort,  or  he 
could  recover  for  the  breach  of  contract. 

§  168.  The  damage. — Unless  some  substantial  in- 
jury w^as  done  there  can  be  no  action  for  negligence. 
Damage  is  an  essential  element;  and  it  is  obvious  that 
the  damage  must  have  been  to  the  plaintiff  specially.  If 
from  any  careless  act  the  plaintiff  is  injured  only  in  the 
same  kind  and  degree  as  the  whole  public  there  will  be 
no  cause  of  action. 

§  169.  Cause  and  effect. — The  connection  of  cause 
and  effect  between  the  breach  of  duty  and  the  injury 
must  be  established,  otherwise  the  negligence  is  not 
actionable.  It  must  be  shown  that  but  for  the  breach  of 
duty  the  injury  would  not  have  happened.  But  while  this 
is  necessary  to  be  shown,  it  is  not  enough.  The  plaintiff 
must  go  further  and  show  that  the  breach  of  duty  was 
an  efficient  cause.  For  example,  if  a  passenger  carrier  is 
guilty  of  delay  so  that  he  arrives  at  a  place  on  the  road 


§  172]  NEGUGENCE  123 

where  a  sudden  storm  injures  the  passenger,  it  might  be 
evident  that  the  injury  would  not  have  happened  but  for 
the  neghgent  delay;  and  yet  it  is  also  clear  that  such  an 
injury  might  equally  well  happen  where  the  carrier  is 
unusually  diligent.  The  storm  and  not  the  carrier's  delay 
is  the  efficient  cause  of  the  injury.  It  is  a  uniform  rule, 
however,  that  if  the  defendant's  act  was  an  efficient  cause, 
he  is  not  relieved  by  the  concurrence  of  other  causes, 
whether  they  be  called  the  negligence  of  others,  inevitable 
accident  or  the  act  of  God. 

§  170.  The  legal  connection. — Difficulty  lies  not 
only  in  tracing  a  casual  connection,  but  also  in  determin- 
ing whether  the  connection  is  sufficiently  close  to  be 
cognizable  by  the  law.  Theoretically  there  is  no  end  to 
the  effect  of  an  act,  and  no  cause  back  of  which  another 
cause  may  not  be  found.  The  law,  however,  is  practical 
and  draws  lines  beyond  which  the  search  for  cause  or 
effect  shall  not  be  prosecuted.  It  requires  that  the  act 
shall  be  shown  to  be  the  proximate,  not  the  remote  cause 
of  the  injury. 

§  171.  Definition  of  proximate  cause. — Proximate 
cause  is  that  which  in  a  natural  and  continuous  sequence, 
unbroken  by  any  new  cause,  produces  the  event  and  with- 
out which  the  event  would  not  have  occurred. 

A  remote  cause  is  one  which  has  so  far  expended  it- 
self that  its  influence  in  producing  the  injury  is  too 
minute  for  the  law's  notice;  or  a  cause  which  some  inde- 
pendent force  merely  took  advantage  of  to  accomplish 
something  not  the  probable  or  natural  effect  thereof. 

§  172.  Plaintiff's  own  conduct. — In  the  search  for 
the  causes  of  an  injury,  it  usually  happens  that  some 
conduct  of  the  person  injured  must  be  considered  as  an 


124  ELEMENTARY    LAW  [§173 

agency.  The  question  arises,  how  far  does  this  affect 
the  liabihty  of  others? 

It  is  obvious  there  is  but  one  way  in  which  plaintiff's 
conduct  can  have  any  effect  in  reheving  other  causes  of 
injury,  and  that  is  by  being  itself  a  cause.  In  determin- 
ing whether  it  is  or  is  not  a  cause,  the  plaintiff's  conduct 
is  to  be  considered  and  weighed  as  a  fact,  in  the  same 
way  with  all  the  other  facts  in  the  case.  And  the  same 
rules  governing  casual  connection  apply.  If  no  relation 
of  cause  and  effect  can  be  shown  between  plaintiff's  con- 
duct and  the  injury,  the  right  of  action  against  others  is 
unaffected,  it  matters  not  what  may  be  plaintiff's  fault  or 
innocence  in  such  conduct. 

If,  on  the  other  hand,  plaintiff's  conduct,  whether 
wrongful  or  not,  is  shown  to  be  an  efficient  and  super- 
seding cause,  it  will  be  deemed  the  sole  cause.  Between 
these  two  are  the  cases  in  which  plaintiff's  conduct  is  an 
efficient,  but  not  a  superseding  cause,  and  these  embrace 
the  subject  of  plaintiff's  contributory  fault.  It  should  be 
noted  at  the  outset  that  no  question  can  arise  as  to  plain- 
tiff's fault,  except  upon  the  assumption  that  there  has 
been  fault  in  tlie  defendant;  for  if  the  defendant  is  inno- 
cent, the  case  is  at  an  end. 

It  is  a  general  rule,  founded  on  the  maxim,  "no  man 
shall  take  advantage  of  his  own  wrong,"  that  if  one  is 
injured  by  the  negligence  of  another,  he  can  not  recover 
damages  unless  he  is  himself  free  from  fault  proximately 
contributing  to  the  injury.  This  fault  in  plaintiff  may 
consist  (1)  in  an  act  unlawful  in  itself,  (2)  in  negli- 
gence only. 

§  173,  Plaintiff's  unlawful  act. — If  an  unlawful  act 
of  the  plaintiff  be  an  efficient  proximate  cause  of  the 
injury  to  him,  he  can  not  recover  against  another  person 
whose    negligent    act    was    also    an    efficient    cause.      For 


§  175J  NHGLIGKNCIi  125 

example,  if  two  thieves  break  into  a  house  with  drawn 
pistols,  and  one  by  negligence  shoot  the  other,  no  action 
could  be  maintained.  It  is  essential,  however,  that  the 
plaintiff's  unlawful  act  be  proximate  in  causation;  for  if 
the  unlawful  act  amounts  only  to  a  condition  or  remote 
cause,  it  will  not  bar  his  action.  For  instance,  though 
traveling  on  Sunday  be  made  unlawful  by  statute,  it 
would  not  bar  an  action  against  one  who  should  negli- 
gently frighten  plaintiff's  horse  on  Sunday.  For  it  is 
not  a  natural  sequence  of  Sunday  travel  that  such  injury 
should  happen. 

§  174.  Contributory  negligence. — The  common-law 
rule  was  that  there  could  be  no  recovery  for  negligence 
of  another  if  the  injured  person  by  his  negligence  prox- 
imately contributed  to  the  injury.  This  rule  has  been 
adopted  as  the  law  in  the  federal  courts  and  in  the  courts 
of  nearly  all  of  the  states.  Wherever  the  common-law 
rule  prevails  any  negligence  of  the  plaintiff  that  prox- 
imately contributes  as  a  cause  of  the  injury  will  defeat  a 
recovery.  In  some  states  plaintiff's  negligence  is  for  the 
defense  to  prove,  in  others  the  plaintiff'  must  show  its 
absence. 

§  175.  Tests  of  contributory  negligence. — In  as- 
certaining whether  negligence  exists,  the  plaintiff's  con- 
duct must  be  viewed  in  the  light  of  all  other  facts  in  the 
case,  and  in  general  is  subject  to  the  same  tests  as  is  the 
defendant's  conduct.  There  must  have  been  a  failure  by 
plaintiff  to  use  ordinary  care,  or  the  accident  is,  so  far  as 
his  responsibility  goes,  inevitable.  There  must  have  been 
a  want  of  such  ordinary  care  as  was  required  under 
the  particular  circumstances.  The  kind  and  degree  of 
care  depends  on  the  facts  in  each  case.  The  plaintiff's 
negligence  may  have  been  an  act  or  omission.      Subject 


126  ELEMKNTARY    LAW  [§  170 

to  the  exceptions  made  under  the  doctrine  of  imputable 
neghgence,  which  will  be  hereafter  considered,  the  plain- 
tiff must  have  been  legally  responsible  for  his  conduct. 
Voluntary  intoxication  does  not  relieve  the  plaintiff  from 
exercising  all  the  care  he  should  have  exercised  if  sober 
Physical  infirmities  are  taken  into  account,  and  while 
plaintiff  is  not  expected  to  use  powers  that  he  does  not 
possess,  he  is  bound  so  far  as  possible  to  make  up  for 
defective  powers  by  the  use  of  those  he  has,  and  it  is 
essential  that  the  plaintiff's  conduct  be  a  proximate  cause 
of  the  injury. 

§  176.  Plaintiff's  knowledge  of  danger. — The  fact 
that  plaintiff  knew  there  was  danger  is  not  conclusive 
that  he  was  guilty  of  contributory  negligence.  A  man 
may  be  fully  conscious  of  danger,  and  yet  be  in  the 
exercise  of  ordinary  care  under  the  circumstances.  Some 
risks  must  always  be  taken;  the  question  is,  what  risks 
will  a  prudent  man  take? 

§  177.  Danger  incurred  to  save  life  or  in  discharge 
of  duty. — One  who  is  saving  the  life  of  another  in  peril 
from  the  defendant's  negligence  is  not  guilty  of  con- 
tributory negligence,  unless  the  attempt  to  save  is  so 
rash  as  to  be  practically  certain  to  result  in  injury,  or, 
as  is  sometimes  held,  unless  the  person  to  be  saved  was 
himself  in  the  wrong.  A  son  who  tried  to  save  the  life 
of  his  father,  who  was  negligently  on  a  railroad  track, 
was  not  allowed  to  recover  against  the  railroad  company 
for  its  negligence. 

One  charged  with  the  duty  of  caring  for  others  is  not 
guilty  of  contributory  negligence  even  though  he  dis- 
charge the  duty  in  the  face  of  certain  danger,  provided, 
of  course,  that  he  could  not  have  done  his  duty  in  any 
safer  way.     But  a  person  so  injured  must  himself  have 


§  180J  NEGUGENCE  127 

been  free  from  any  fault  in  creating  the  clanger.  So, 
an  engineer  who  stays  at  his  post  to  save  passengers  from 
a  colHsion  is  not  to  be  deemed  guilty  of  contributory 
negligence,  unless,  for  instance,  he  violated  orders  in 
starting  and  thereby  brought  on  the  collision. 

§  178.  Persons  of  defective  powers. — As  has  been 
shown,  persons  of  defective  powers  are  not  guilty  of 
negligence  for  failing  to  exercise  more  care  than  they 
are  capable  of  exercising.  This  is  equally  true  where  the 
question  is  upon  contributory  negligence  of  such  persons. 
It  naturally  follows  that  a  correspondingly  higher  degree 
of  care  is  required  from  all  who  deal  with  such  persons. 
An  act  that  would  be  ordinarily  careful,  if  done  toward 
a  grown  person,  might  be  negligent  if  done  toward  a 
child.  It  is  always  presupposed,  however,  that  the 
defective  condition  of  the  person  was  or  ought  to  have 
been  known.  Thus  an  engineer  would  not  be  negligent 
for  expecting  a  man  to  step  off  the  track  when  he  sounded 
the  whistle,  without  checking  speed,  whereas,  if  he  had 
notice   that   the   man   was   deaf,    it   would  be   negligence. 

§  179.  Misleading  conduct. — A  plaintiff  is  not 
chargeable  with  contributory  negligence,  whose  erroneous 
act  was  caused  or  induced  by  the  misleading  conduct  of 
the  defendant.  If  he  has  a  right  to  rely  and  does  rely 
upon  defendant's  verbal  directions  or  conduct,  assuring 
him  of  safety,  he  is  blameless,  provided  the  danger  is 
not  obvious ;  and  where  bv  the  defendant's  nesrlieence 
a  sudden  danger  confronts  the  plaintiff,  he  is  not  in  fault 
if  in  the  haste  and  alarm  he  does  not  choose  the  safest 
course,  or  even  if  he  chooses  the  only  dangerous  course. 

§  180.  Imputable  negligence. — The  principle  on 
which  tlie  doctrine  of  imputable   negligence  rests  is  that 


128  ELEMENTARY    LAW  [§  18l 

the  innocent  person  and  the  guilty  person  are  identified 
as  in  a  joint  enterprise,  by  agency  or  by  having  the  right 
to  control.  The  case  of  saver  and  saved  has  been  alluded 
to,  the  negligence  of  the  one  saved  being  imputed  to  the 
saver.  The  negligence  of  a  servant  is  imputed  to  the 
master,  for  he  has  the  right  to  control.  Partners,  whose 
goods  are  injured  by  negligence  of  another,  can  not 
recover  if  the  negligence  of  one  partner  contributed,  for 
his  negligence  is  imputable  to  all.  The  cases  of  carrier 
and  passenger,  and  of  children,  require  a  few  words 
more. 

§  181.     Passenger  and  carrier — Imputed  negligence. 

— The  old  English  rule,  established  by  the  case  of  Thoro- 
good  V.  Bryan,  was  that  in  an  action  by  a  passenger 
against  a  third  person  for  a  negligent  injury,  the  con- 
tributory negligence  of  the  carrier  will  be  imputed  to  the 
passenger.  It  was  assumed  that  a  carrier  is  a  passenger's 
servant  in  all  cases.  The  rule  has  been  overthrown  in 
England,  and  is  not  in  force  in  the  United  States  courts, 
nor  in  most  of  the  states.  The  negligence  will  not  be 
imputed  to  the  passenger  unless  the  driver  was  acting  under 
the  direct  control  and  instruction  of  the  passenger.  This 
is  the  modern  view. 

§  182.  Children — Imputed  negligence. — The  ques- 
tion is  only  concerning  children  too  young  to  be  capable 
of  exercising  any  care  whatever;  for  if  they  have  any 
capacity  at  all  they  will  be  negligent  for  failing  to  exer- 
cise it,  and  at  the  same  time  will  be  responsible  only  for 
their  own  negligence.  Whether  the  negligence  of  parents 
or  custodians  shall  be  imputed  to  children  who  are  them- 
selves incapable  of  exercising  care  and  hence  incapable 
of   negligence,   is   a   question  upon   which   the   authorities 


§  183]  negligence;  129 

are  divided.     The  better  reason  is  against  imputing  negli- 
gence in  such  case. 

§  183.  Presumptions  as  to  negligence. — As  a  rule 
negligertce  is  not  presumed,  but  must  be  proved.  The 
mere  fact  that  some  one  has  been  injured  does  not 
usually  make  it  probable  that  any  particular  person  has 
been  negligent.  But  the  circumstances  under  which  an 
injury  occurred  may  be  such  as  to  create  a  presumption 
of  negligence,  and  throw  the  burden  upon  a  certain  person 
to  prove  himself  without  fault.  If,  judged  by  common 
human  experience,  a  fact  could  not  exist  except  by  some 
negligence,  the  court  will,  in  the  absence  of  other  evi- 
dence, declare  that  there  was  negligence.  For  instance, 
if  a  passenger  is  thrown  down  by  the  jerk  of  a  street 
car,  the  presumption  is  that  the  jerk  was  by  negligence 
of  the  street  car  company;  if  a  boiler  on  a  vessel  ex- 
plodes, it  is  presumed  to  have  exploded  by  negligence  of 
those  in  control.  The  presumption  can  always  be  over- 
come by  the  defendant  showing  that  in  fact  he  exercised 
ordinary  care  under  the  circumstances. 

Whether  the  presumption  shall  be  made  depends  some- 
what upon  the  nature  of  the  duty  owing  and  the  degree 
of  care  required  in  its  discharge.  Where  there  is  an 
obligation  for  especial  care,  the  presumption  of  negligence 
will  be  made,  when  it  would  not  under  ordinary  cir- 
cumstances. For  example,  if  a  railroad  train  runs  off  the 
track  and  injures  a  passenger  and  a  bystander,  as  to  the 
passenger  the  presumption  of  negligence  in  the  railroad 
company  would  arise,  but  not  as  to  the  bystander. 


9 — Elem.  Law. 


CHAPTER  XV 
WRONGS  TO   INCORPOREAL  PROPERTY 


Sec. 

Sec. 

184. 

Incorporeal  heredita- 

188. 

Copyrights. 

ments. 

189. 

Literary  property. 

18.S. 

Other    incorporeal    rights. 

190. 

Private  letters. 

186. 

Statutory  provisions. 

191. 

Trade-marks     and 

trade 

187. 

Patents. 

names. 

§  184.  Incorporeal  hereditaments.  —  Incorporeal 
hereditaments  are  inheritable,  but  intangible  rights  in  cor- 
poreal or  tangible  property,  such  as  rights  of  way  across 
the  land  of  another,  easements  and  the  like.  These 
rights  partake  of  the  nature  of  the  things  out  of  which 
they  issue,  but.  since  the  rights  themselves  can  not  be 
seen  or  handled,  it  is  evident  that  they  are  incapable  of 
direct  injury.  Whatever  injury  is  done  must  be  con- 
sequential. Hence  the  remedies  for  direct  wrongs  against 
corporeal  property  are  not  applicable  to  incorporeal 
hereditaments.  If  one  has  a  right  of  way  across  another's 
land,  and  it  is  interfered  with  so  that  he  is  deprived  of 
its  use,  his  remedy  is  not  by  ejectment,  but  by  an  action 
for  the  consequential  damages  or  by  an  injunction.  But 
where  the  consequence  of  a  wrong  to  an  incorporeal  right 
is  also  an  injury  to  corporeal  property,  the  remedies  as 
for  a  direct  wrong  may  be  had.  For  instance,  if  a  land- 
owner has  an  easement  for  lateral  support,  and  his  neigh- 
bor wilfully  and  maliciously  takes  away  the  support  and 
causes  the  land  to  fall,  the  owner  may  treat  it  as  a 
direct  wrong  done  by  force  to  his  land. 

§  185.     Other  incorporeal  rights. — There  is  an  im- 

130 


§  187]  WRONGS    TO    INCORPOREAL    PROPERTY  131 

portant  class  of  incorporeal  rights  which  do  not  issue  out 
of  corporeal  property  in  the  sense  that  incorporeal  heredi- 
taments do:  This  class  embraces  the  subjects  of  copy- 
rights, patents  and  trademarks.  Public  policy  and  the 
sense  of  justice  dictate  that  one  who  creates  anything 
should  be  permitted  to  enjoy  the  fruits  of  his  labors.  It 
is  evident  that  in  case  of  copyrights,  patents  and  trade- 
marks, the  substantial  benefit  to  be  derived  by  the 
creator  of  the  thing  in  question  lies  in  his  having  the 
exclusive  right  to  reproduce  or  use  it.  ' 

§  186.  Statutory  provisions. — The  constitution  of 
the  United  States  gives  power  to  congress  to  secure  to 
authors  and  inventors  the  benefit  from  their  creations, 
for  a  limited  time;  and  congress  has  passed  acts  for  that 
purpose.  Just  what  the  provisions  are  as  to  the  steps 
to  be  taken,  it  is  not  now  material  to  inquire.  Whenever 
the  formalities'  prescribed  are  observed  the  writer  or 
inventor  has  a  monopoly  for  the  period  provided,  and 
may  have  his  remedy  against  one  who  infringes  his  right. 
He  may  procure  an  injunction,  recover  damages  he  has 
suffered,  and  recover  profits  made  by  others. 

§  187.  Patents. — Without  entering  into  the  details 
of  patent  law,  a  few  general  principles  may  be  stated.  A 
patent  is  given  for  an  invention,  namely  something  created 
by  man.  Natural  processes  and  principles  can  not  be 
patented.  The  thing  must  be  new  and  useful.  A  new 
method  of  combining  things  to  produce  results  may  be 
patented. 

Infringement  of  patents  may  consist  in  making,  using 
or  selling  the  thing  that  is  substantially  covered  by  the 
patent.  The  person  infringing  may  be  held  liable, 
whether  he  knew  or  did  not  know  the  article  was  patented. 


132  ELEMENTARY    LAW  [§  188 

An    exception    is    made    in    favor    of    persons    making    or 
using  the  article   for  purposes  of  experiment  only. 

§  188.  Copyrights. — The  copyright  laws  apply  to 
printing  of  any  kind,  pictures,  music  and  statuary,  and 
confer  upon  the  author  the  exclusive  right  to  make,  use 
or  sell  copies  or  the  originals.  The  exclusive  right 
extends  to  the  whole  as  well  as  every  substantial  part 
of  the  thing  copyrighted,  so  that,  if  there  is  a  copy  or 
imitation  of  any  substantial  part,  it  will  be  an  infringe- 
ment. As  to  what  is  a  substantial  part,  the  facts  in  each 
case  must  determine.  The  size  of  the  part  taken  is  not 
a  decisive  test,  for  the  true  value  may  be  in  the  small 
part  taken.  For  purposes  of  criticism,  parts  may  be 
quoted,  but  if  the  review  is  a  pretense  for  publishing  a 
substantial  copy,  it  is  an  infringement. 

Whoever  infringes  the  copyright  of  another  is  liable, 
whether  it  is  done  innocently  or  not.  The  intent  is  in 
general   immaterial. 

§  189.  Literary  property. — The  monopoly  granted 
under  the  copyright  statute  is  enjoyed  by  the  author  after 
publication.  Before  publication,  however,  an  author  has 
legal  rights  in  the  product  of  his  intellect,  and  these  rights 
were  recognized  before  the  copyright  statutes. 

At  common  law,  so  long  as  an  author  did  not  publish 
his  work  to  the  world  or  abandon  it  to  the  public,  he 
retained  the  right  as  property  to  make  such  use  of  it  as 
he  saw  fit.  He  might,  witliout  losing  his  right,  permit 
others  to  make  a  limited  use  of  it.  Whoever  without  the 
author's  consent  used  his  work  in  whole  or  part  was 
liable  to  the  author  in  damages  and  could  be  enjoined. 

§  190.  Private  letters. — Where  letters  have  a  lit- 
erary value  the  writer  has  the  sole  right  to  publish  them, 


§  191]  WRONGS    TO    INCORPOREAL    PROPERTY  133 

even  though  the  legal  title  to  the  paper  is  in  the  recipient. 
If  it  is  apparent  that  they  were  intended  for  publication, 
the  recipient  may  also  publish  them.  Any  attempt  by 
others  to  publish  them  may  be  restrained  by  injunction, 
or  damages  may  be  recovered  for  the  publication.  So  far 
as  a  letter  has  value  for  historic  purposes  the  recipient 
may  use  it.  And  all  papers  of  every  kind  may  be  used 
by  any  one  as  evidence  in  any  suit,  no  matter  what  may 
be  their  value. 

§  191.  Trade-marks  and  trade-names. — A  trade- 
mark is  a  name,  symbol  or  device  used  by  a  person  to 
designate  that  certain  goods  or  property  are  made  by  or 
used  by  him  only,  or  that  a  particular  business  is  con- 
ducted by  him.  The  essential  quality  of  a  trade-mark  is 
that  it  is  arbitrary  in  form.  If  the  mark  is  descriptive 
of  any  quality  of  the  goods  it  is  not  valid  as  a  trade- 
mark. It  is  intended  as  a  simple  and  convenient  guide 
to  customers.  Whoever  imitates  the  trade-mark  and  so 
palms  off  goods  under  false  colors,  commits  a  fraud  upon 
the  purchaser,  and  at  the  same  time  causes  damages  to 
the  owner  of  the  trade-mark,  both  by  the  profits  he  has 
lost  and  it  may  be  by  the  injury  to  the  reputation  of  his 
goods.  This  the  law  recognizes  as  a  substantial  damage, 
and  the  trade-mark  is  regarded  as  incorporeal  property. 
The  law  of  trade-marks  is  of  comparatively  recent  origin, 
although  the  principles  upon  which  it  rests  have  been 
long  settled  as  a  part  of  the  common  law. 

The  remedy  for  infringement  of  trade-marks  is 
practically  the  same  as  for  infringement  of  patents, 
namely,  damages  for  loss  of  profits,  injunction  and  re- 
covery of  the  profits  made  by  the  infringer. 

In  the  United  States  recent  statutes  have  been  passed 
authorizing  the  registry  of  trade-marks  in  some  cases, 
and  giving  them  greater  value  as  evidence  when  registered 


134  ELEMENTARY    LAW  [§  191 

than  when  not.  The  statutes  are  generally  only  declara- 
tory of  the  common  law,  and  all  the  remedies  that  for- 
merly existed  are   preserved. 

Though  not  a  trade-mark  technically,  a  trade-name  or 
sign  will  receive  protection  from  the  courts  if  it  is  not 
merely  descriptive  and  contains  no  deceptive  words  or 
meaning,  and  a  rival  may  be  enjoined  from  using  such 
name  or  sign  so  as  to  cause  injury  to  the  owner.  By 
means  of  such  trade-names  what  is  called  the  good  will 
of  a  business  is  preserved  and  becomes  a  valuable  prop- 
erty right. 


CHAPTER  XVI 


WRONGS  TO   PERSONAL  PROPERTY 


Sec. 

Sec. 

192. 

Kinds  of  injuries. 

198. 

Demand  for  possession. 

193. 

Trespass  by  force. 

199. 

Conversion    by    tenant    in 

194. 

Possession. 

common. 

195. 

The  force. 

200. 

Legal  process. 

196. 

Conversion. 

201. 

Remedies. 

197. 

Conversion      by      persons 

rightfully  in  possession. 

§  192.  Kinds  of  injuries. — Wrongs  that  may  be 
done  to  the  owner  of  personal  property  through  fraud, 
neghgence  and  nuisance  have  been  considered.  There 
remain  to  be  considered  wrongs :  ( 1 )  By  direct  force 
injuring  or  disturbing  the  owner  in  his  possession.  (2) 
By  conversion  or  depriving  the  owner  of  his  property. 
(3)  By  neglect  to  restore  to  the  owner  upon  demand 
property  to  which  he  is  entitled. 

§  193.  Trespass  by  force. — The  first  class  of  the 
wrongs  named  is  known  as  a  trespass  by  force  or  vi  et 
armis.  By  this  is  intended  only  a  direct  injury  by  the 
unlawful  forcible  disturbance  of  another  in  his  possession 
of  the  property.  This  may  amount  to  a  partial  or  com- 
plete destruction  of  the  property.  The  wrong  going  only 
to  the  possession,  it  follows  that  one  who  has  an  interest 
in  the  property,  but  has  not  actual  or  constructive  pos- 
session, is  not  entitled  to  complain  of  an  injury  as  a 
trespass  vi  et  armis,  but  the  injury  as  to  him  should  be 
redressed  in  some  other  form,  as  will  be  seen. 


§  194.     Possession. — The     possession     referred     to 

135 


136  ELEMENTARY    LAW  [§  195 

may  be  (1)  that  of  the  general  owner,  (2)  that  of  one 
having  a  special  property,  as  a  bailee,  mortgagee,  etc.,  or 
(3)  that  of  one  having  no  title  beyond  mere  peaceable 
possession.  The  possession  of  a  servant  or  agent  is  in 
law  the  possession  of  the  master  or  principal,  and  need 
not  be  considered  as  a  distinct  possession. 

Possession  need  not  be  actual.  If  one  has  the  imme- 
diate right  to  possession,  he  has  the  general  property  and 
is  said  to  have  constructive  possession.  He  may  main- 
tain an  action  for  trespass  against  any  wrongdoer,  except 
the  person  who  has  the  special  property  and  actual  pos- 
session. 

Where  there  is  a  special  property  in  goods,  either  the 
general  or  special  owner  may  sue  a  third  person  for 
injury  to  the  goods. 

One  who  has  mere  peaceable  possession  has  sufficient 
possession  to  warrant  a  suit  for  trespass  against  any 
wrongdoer  except  the  owner. 

§  195.  The  force. — The  force  used  may  be  by  the 
wrongdoer  personally,  by  his  servants  or  by  his  animals. 
It  may  be  either  express  force,  as  in  robbery,  or  implied 
force,  as  in  the  act  of  placing  poison  before  animals. 
The  degree  of  force  is  immaterial.  To  cut  a  rope  tying 
a  cow  would  be  a  trespass.  It  must  moreover  appear  that 
the  injury  was  proximate. 

§  196.  Conversion. — Any  distinct  act  of  dominion 
wrongfully  exerted  by  one  person  over  another's  prop- 
erty, in  denial  of  his  right,  or  inconsistent  with  it,  is 
known  as  a  conversion.  It  is  the  denial  of  the  owner's 
right  that  distinguishes  conversion  from  trespass,  for  tres- 
pass may  sometimes  be  committed  even  though  the  own- 
er's right  to  property  and  possession  be  fully  conceded. 
Whether  the  act  be  for  the  benefit  of  the  wrongdoer  or 


§  197]  WRONGS    TO    PERSONAL    PROPERTY  137 

a  third  person,  and  whether  it  be  for  a  temporary  pur- 
pose or  otherwise,  it  is  a  conversion,  if  the  dominion  of 
the  owner  be  interfered  with.  It  follows  from  this 
that  many  wrongs  that  are  trespasses  may,  at  plain- 
tiff's option,  be  treated  as  conversions.  Anything  that  is 
personal  property,  even  though  it  have  no  value  except 
to  the  owner,  may  be  the  subject  of  a  conversion.  Who- 
ever has  the  mere  possession  of  goods,  provided  the  pos- 
session was  not  gained  by  force  or  fraud,  is  entitled  to 
maintain  an  action  for  conversion  against  any  one  except 
the  owner.  And  any  one  who  has  not  the  actual  posses- 
sion, but  who  has  the  right  to  immediate  possession,  may 
maintain  the  action. 

§  197.  Conversion  by  persons  rightfully  in  posses- 
sion.— When  a  person  who  has  a  special  property  in 
goods,  as  a  bailee,  mortgagee,  etc.,  does  any  act  in  excess 
of  his  authority,  and  inconsistent  with  the  rights  of  the 
general  owner,  his  acts  may  be  treated  as  a  conversion. 
If  a  mortgagee  should  sell  the  mortgaged  property,  as  his 
own,  and  in  denial  of  the  mortgage,  it  would  be  a  con- 
version; if  sold  subject  to  the  terms  of  the  mortgage, 
however,  it  would  not  be. 

Whoever  buys  the  property  must  ascertain  the  title, 
and  if  he  takes  possession  and  thereby  denies  the  owner's 
right,  he  is  liable  for  conversion.  The  question  of  good 
faith  is  not  involved.  All  who  participate  in  the  conver- 
sion, as  seller  or  buyer,  principal  or  agent,  may  be  held 
liable.  But  if  one  is  innocently  in  possession  of  goods 
belonging  to  another,  and,  before  notice  of  the  true 
owner,  surrenders  them  to  the  person  from  whom  he 
received  them,  he  will  not  be  liable  for  conversion.  And 
if,  after  notice  of  the  true  ownership,  he  surrenders  pos- 
session upon  demand  to  the  owner,   he  will   not  be  held 


138  ELEMENTARY    LAW  [§  198 

liable  either  to  the  owner  or  to  the  person   from  whom 
he  received  them. 

§  198.  Demand  for  possession. — It  is  a  general  rule 
that  where  one  has  obtained  possession  of  goods  by  force 
or  fraud,  it  is  not  necessary  to  demand  possession  from 
the  wrongdoer  before  bringing  suit;  and  when  the  posses- 
sion was  originally  rightful,  but  there  has  been  such  abuse 
or  excess  of  authority  as  to  constitute  a  conversion,  no 
demand  need  be  made.  If,  however,  one  has  rightful 
possession  and  does  not  deny  the  owner's  title,  it  is 
essential,  in  order  to  maintain  the  action,  that  a  demand 
shall  have  been  made  for  possession,  and  a  refusal  to 
deliver.  Such  demand  and  refusal  need  not  be  express; 
they  may  be  implied  from  conduct.  An  attempt  to  take 
the  property  is  usually  a  sufficient  demand,  and  opposing 
the  attempt  is  a  sufficient  refusal. 

§  199.  Conversion  by  tenant  in  common. — As  each 
tenant  in  common  has  a  right  to  possession  of  the  thing 
held  in  common,  there  can  not  be  a  conversion  by  one 
who  merely  withholds  possession  from  the  other.  But 
anything  that  amounts  to  a  loss  or  destruction  of  the 
property  by  fault  of  the  one  in  possession  may  be  a  con- 
version. So  it  is  generally  held  that  a  sale  would  be.  In 
some  states  it  is  held  that  if  the  property  be  in  its  nature 
divisible,  a  demand  by  one  owner  for  his  share  refused 
by  the  other  would  be  enough  to  establish  a  conversion. 

§  200.  Legal  process. — Whenever  property  Is  in- 
terefered  with  under  color  of  legal  process,  the  person 
interfering  must  confine  himself  within  his  lawful  powers, 
and  for  any  excess  he  may  be  held  liable  as  for  a  con- 
version of  the  property. 

An  officer  of  the  law  may  without  process  take  a  thief 


§201]  WRONGS    TO    PERSONAL    PROPERTY  139 

together  with  the  stolen  property,  or  when  he  arrests  a 
felon  may  take  his  weapons.  But  generally,  in  order  to 
take  property  he  must  have  process.  When  acting  under 
legal  process  he  can  not  be  held  liable  as  for  conversion, 
if  the  process  be  issued  by  a  court  having  jurisdiction, 
and  be  on  its  face  without  suspicious  earmarks,  and  if 
he  substantially  follows  the  command  of  the  writ.  If  he 
exceeds  or  violates  the  command  of  the  writ,  as  for 
instance  by  selling  without  notice  or  injuring  the  goods, 
he  may  be  held  liable  for  the  conversion. 

A  magistrate  is  liable  for  issuing  process  if  he  acts 
knowingly  without  jurisdiction,  and  a  party  who  knowing- 
ly sets  a  magistrate  or  officer  in  motion  to  act  without 
authority  is  liable.  If  property  is  sold  at  a  judicial  sale 
upon  a  void  judgment  or  void  process,  the  purchaser  may 
be  liable  for  conversion. 

§  201.  Remedies. — The  remedies  permitted  by  law 
for  injuries  done  to  personal  property  are  the  following: 

(1)  Recaption,  that  is,  the  act  of  the  owner  in  retak- 
ing possession  without  suit.  This  he  is  permitted  to  do 
provided  he  does  it  before  complete  possession  has  been 
established   in  the  wrongdoer. 

(2)  By  an  action  at  law.  The  forms  of  action  under 
which  redress  was  given  at  common  law  were:  Trespass, 
to  recover  damages  for  direct  injuries  to  property;  trover, 
to  recover  damages  for  the  wrongful  taking  or  detention 
of  property;  detinue,  to  recover  the  possession  of  the 
property  itself;  replevin,  to  recover  the  possession  as  well 
as  damages  for  taking  property.  Where  the  injury  was 
indirect  or  consequential,  the  action  was  in  "trespass  on 
the  case." 

(3)  In  some  cases  a  court  of  equity  granted  an  in- 
junction to  prevent  the  doing  or   continuance  of  injury. 

The    remedies    named    substantially    exist    in    all    the 


140  ELEMENTARY    EAW  [§  201 

States.  The  forms  of  the  common-law  action  have,  how- 
ever, been  more  or  less  modified  and  simplified  by  statutes. 
As  a  rule,  the  action  being  personal,  redress  may  be  had 
wherever  jurisdiction  can  be  acquired  over  the  wrong- 
doer, regardless  of  the  place  where  the  property  is  or  the 
wrong  was  committed. 


CHAPTER  XVII 


WRONGS  TO  REAL  PROPERTY 


Sec. 

Sec. 

202. 

Ownership. 

214. 

203. 

Dispossession. 

215. 

204. 

Unlawful  detention. 

216. 

205. 

Remedies. 

206. 

Injuries    to    land    without 
possession. 

217. 

207. 

Waste. 

218. 

208. 

Kinds  of  waste. 

219. 

209. 

Remedies. 

220. 

210. 

Nuisance  affecting  land. 

221. 

211. 

Remedies. 

212. 

Trespass  upon  land. 

222. 

213. 

The  boundary  line. 

Who  may  be  a  trespasser. 

Lawful   authority. 

License  impliedly  given  by 
the  owner. 

Express  license  by  the 
owner. 

Effect  of  statute  of  frauds. 

License  by  law. 

Legal  process. 

Condemnation  proceed- 
ings. 

Effect  of  exceeding  the  li- 
cense. 


§  202.  Ownership. — The  owner  of  real  estate  is  en- 
titled to  dominion  as  against  all  the  world;  the  person 
in  possession  is  entitled  to  dominion  as  against  all  but 
the  one  having  a  better  right.  Whoever  interferes  with 
his  dominion  may  be  treated  as  a  wrongdoer.  The  in- 
juries that  may  be  done  to  an  owner  as  to  his  real 
estate  may  be  ( 1 )  by  putting  or  keeping  him  out  of 
possession;  (2)  by  injuring  his  land  while  in  his  posses- 
sion. 


§  203.  Dispossession. — Under  the  common  law  a 
classification  of  the  wrongs  of  dispossession  included  some 
which,  by  reason  of  changes  in  the  law,  are  now  of  little 
importance.  Abatement,  that  is,  where  on  the  death  of  a 
person  a  stranger  entered  before  the  heir,  and  intrusion, 
that  is,  where  a  stranger  entered  before  a  remainderman 
or  reversioner,  were  wrongs  that  now  do  not  differ  in  legal 

141 


142  ELEMENTARY    LAW  [§  204 

effect  from  any  other  unlawful  taking  possession  of  land 
in  absence  of  the  owner.  The  reason  for  the  former 
classification  as  distinct  wrongs  lies  in  the  fact  that  for- 
merly no  ownership  was  full  and  complete  without  an 
entry;  now,  however,  there  is  no  interval  and  the  title 
and  complete  ownership  vest  immediately.  The  wrong  of 
disseizin,  that  is,  entering  upon  land  and  depriving  the 
owner  of  his  possession,  is  the  equivalent  of  all  wrongs 
wherein  the  entry  was  wrongful  from  the  beginning,  and 
continued  to  be  so.  The  wrong  may  be  committed  by 
one  who  gains  possession  for  a  limited  purpose  and 
wrongfully  exceeds  the  authority  granted,  whereby  the 
entire  possession  is  held  to  be  wrongful  from  the  begin- 
ning. 

§  204.  Unlawful  detention. — Where  the  original 
taking  possession  was  not  unlawful,  but  the  wrong  con- 
sists in  detaining  the  possession,  this  is  likewise  a  dis- 
possession of  the  owner.  This  may  happen,  in  case  of 
a  lease  for  a  definite  term  or  during  the  life  of  another 
person,  by  the  expiration  of  the  term  or  by  the  death 
of  the  person ;  the  tenant  then  holding  over  without 
right.  It  may  also  happen  in  case  of  an  estate  upon  con- 
dition where  the  nonperformance  of  the  condition  forfeits 
the  estate,  and  the  tenant  nevertheless  holds  the  land. 

§  205.  Remedies. — An  owner's  remedy  for  being 
deprived  of  possession  of  real  estate  may  be  by  his  own 
act  or  by  legal  process.  He  may  by  his  own  act  enter 
upon  and  take  possession  of  the  land,  provided  he  does 
not  thereby  commit  a  breach  of  the  peace.  He  is  not 
allowed  the  remedy  by  his  own  act,  if  the  holder  of  the 
land  has  an  apparent  right  to  hold  it,  but  in  such  cases 
the  owner  must  resort  to  his  remedy  by  action  at  law. 

Under  the  common  law  various  forms  of  action  were 


§  207]  WRONGS    TO    RKAL    PROPERTY  143 

used  for  the  recovery  of  real  estate,  but  by  judicial  deci- 
sion and  legislative  enactment,  these  forms  have  been 
gradually  displaced  and  most  of  the  law  relative  to  them 
is  obsolete.  Under  modern  law  the  almost  universal 
remedy  for  trying  the  title  to  lands  is  the  action  for 
possession,  and  this  has  been  so  simplified  that  it  does  not 
correspond  to  the  cumbersome  forms  that  prevailed  under 
the  old  law.  Where  the  title  to  the  land  is  not  in  ques- 
tion, but  only  the  right  to  possess  it,  a  simple  and  prompt 
remedy  is  generally  provided  in  an  action  before  a  justice 
of  peace  for  possession.  An  owner  who  has  been  de- 
prived of  possession  is  entitled  by  an  action  for  damages 
to  recover  the  profits  of  the  land  during  the  time  the 
wrongdoer  held  possession,  and  it  is  usual  to  combine 
the  claim  for  damages  with  the  suit   for  possession. 

§  206.     Injuries  to  land  w^ithout  dispossession. — The 

wrongs  to  real  estate  that  have  been  enumerated  have 
been  by  depriving  the  owner  of  possession;  it  remains 
to  consider  how  the  owner's  land  may  be  damaged  with- 
out affecting  his  title  or  possession.  These  wrongs  may 
be  done  ( 1 )  by  the  tenant  in  possession  to  the  damage 
of  another  who  has  an  interest;  or  (2)  by  a  stranger. 
Wrongs  of  the  former  class  are  called  waste;  of  the 
latter  class,  may  be  either  nuisance  or  trespass  by  breaking 
the  close.     These  will  be  discussed  in  order. 

§  207.  Waste. — Waste  is  the  doing  or  permitting 
lasting  damage  to  the  property  by  the  person  in  posses- 
sion, to  the  injury  of  some  other  person  who  has  an 
interest  therein.  It  may  be  committed,  for  example,  by 
a  life  tenant  as  against  a  remainderman.  The  interest 
which  qualifies  one  to  complain  of  waste  must  be  a  vested 
interest. 


144  EI.EMENTARY    LAW  [§  208 

§  208.  Kinds  of  waste, — Waste  may  be  voluntary 
or  permissive.  Instances  of  voluntary  waste  are  pulling 
down  houses  in  whole  or  part,  cutting  valuable  timber, 
removing  a  material  part  of  the  soil.  In  general,  a 
tenant  is  answerable  for  waste,  even  though  the  act  be 
done  by  a  stranger,  but  he  has  his  remedy  over  against 
the  stranger.  Permissive  waste  arises  by  negligence. 
Where  the  tenant  is  under  obligation  to  keep  the  premises 
in  repair,  but  negligently  suffers  the  premises  to  become 
ruinous,  it  is  waste. 

§  209.  Remedies. — At  common  law  waste  worked 
the  forfeiture  of  the  estate  of  the  tenant;  and  such  is 
still  the  law  in  some  states.  The  most  usual  forms  of 
remedy  are  the  action  for  damages  and  injunction  to 
prevent  threatened  or  continued  waste. 

§  210.  Nuisance  affecting  land. — The  nature  of 
nuisance  has  been  shown  in  the  chapter  treating  of  that 
subject.  So  far  as  relates  to  its  effect  upon  real  estate, 
a  nuisance  must  cause  some  material  and  sensible  injury 
to  the  property  or  its  value.  Anything  done  upon  neigh- 
boring property,  or  upon  highways  so  as  to  affect  in- 
juriously the  property,  may  be  deemed  a  nuisance.  To 
occupy  unreasonably  the  street  in  front  of  one's  place 
of  business  and  block  the  path,  to  carry  on  offensive  busi- 
ness so  that  the  property  becomes  uninhabitable,  or  to 
do  anything  whereby  the  crops  or  trees  on  land  are 
blighted  is  a  nuisance. 

§211.  Remedies. — The  redress  for  nuisances  caus- 
ing damage  to  land  is  not  different  from  that  for  other 
nuisances.  The  landowner  may  abate  the  nuisance  if 
he  acts  reasonably  and  without  breach  of  the  peace.     He 


§  213]  WRONGS    TO    REAL    PROPERTY  145 

may  recover  damages  and  judgment  abating  the  nuisance, 
or  he  may  have  injunction. 

§  212.  Trespass  upon  land. — In  the  w^rongs  of  nui- 
sance the  wrongdoer  causes  indirect  or  consequential 
injury  without  going  upon  the  property  itself.  Where 
the  injury  results  from  the  wrongdoer  going  upon  the 
land,  the  wrong  is  called  a  trespass  by  breaking  the  close. 

The  owner,  or  the  person  in  possession  who  is 
regarded  as  the  owner,  is  entitled  to  exclusive  dominion 
over  the  land.  He  may  repel  any  one  who  attempts  to 
infringe  his  right.  For  his  protection  the  law  supposes 
that  every  man's  land  is  inclosed,  whether  there  actually 
be  a  fence  or  not;  and  whenever  the  boundary  line  is 
crossed  it  is  assumed  that  the  close  is  broken  and  that 
damage  has  resulted.  It  may  be  generally  stated,  that 
every  one  who  crosses  the  landowner's  boundary  line  is  a 
trespasser  by  breaking  the  close  unless  he  does  so  by  law- 
ful authority. 

§  213.  The  boundary  line. — The  boundary  of  land 
extends  perpendicularly  to  the  center  of  the  earth  and  to 
the  sky.  Technically,  an  aeronaut  would  be  a  trespasser. 
Where  the  land  is  adjacent  to  a  highway,  the  rule  is 
generally  that  the  line  extends  to  the  center  of  the 
highway.  The  landowner  owns  the  soil  underlying  the 
highway,  subject  only  to  the  public  easement.  Conse- 
quently, he  may  treat  as  a  trespasser  one  who  violates 
the  easement,  and  he  may  recover  against  the  public  itself 
if  additional  servitude  is  imposed.  If  the  land  is  adjacent 
to  a  stream,  the  line  extends  to  the  center  of  the  stream, 
or,  if  a  fresh  water  navigable  stream  or  lake,  to  low- 
water  mark  only. 

Any  one  who  takes  trees  or  herbage  from  the  highway, 
or  its  soil,  or  who  deposits  material  in  the  highway,  or 
10 — Elem.  Law. 


146  ELEMENTARY    LAW  [§214 

who  cuts  ice  from  a  stream,  may  be  liable  as  a  trespasser 
to  the  adjacent  landowner. 

§  214.  Who  may  be  a  trespasser. — It  is  not  essen- 
tial in  order  to  make  a  man  a  trespasser  that  the  whole 
of  his  person  shall  cross  the  line.  If  any  part  of  his  per- 
son or  anything  physically  under  his  control  pass  the  line 
it  is  sufficient.  So,  too,  a  man  is  answerable  for  the 
trespasses  of  his  cattle,  and  for  the  trespasses  of  persons 
acting  under  his  authority. 

§  215.  Lawful  authority. — An  enumeration  of  the 
cases  where  one  has  no  right  to  cross  a  landowner's  line 
would  be  too  large;  the  law  can  be  more  easily  ascer- 
tained by  examining  the  cases  where  one  is  justified  in 
entering.  The  right  to  enter  is  in  law  known  as  a 
license.  License  may  be  given  (1)  impliedly  by  the 
owner,  (2)  expressly  by  the  owner,  or  (3)  by  the  law. 
These  will  be  considered  in  the  order  stated. 

§  216.  License  impliedly  given  by  the  owner. — A 
dealer  who  exposes  goods  for  sale  impliedly  authorizes 
the  public  to  enter  his  store;  artisans,  physicians,  lawyers, 
who  hold  themselves  out  as  ready  to  serve  others,  implied- 
ly invite  the  public  to  enter.  The  owner  of  an  easement 
has  implied  license  to  enter  and  repair  it.  And  where  a 
landowner  sells  goods  or  is  in  wrongful  possession  of 
another's  goods,  there  is  an  implied  license  to  enter. 
Whoever  holds  himself  out  in  any  way  to  attract  nat- 
urally others  to  enter  impliedly  invites  them  to  do  so. 
Every  landowner  impliedly  licenses  his  neighbors  and 
strangers  to  enter  for  any  proper  occasion,  as  business, 
social  visits,  to  make  inquiries  and  the  like.  The  nature 
and    extent    of    this    implied    license    is    controlled    and 


§  218]  WRONGS    TO    RUAI.    PROPERTY  147, 

measured   by   the   kind   of   premises,    the   purpose   of   the 
entry  and  the  general  custom  of  the  community. 

§  217.  Express  license  by  the  owner. — A  mere  li- 
cense exists  wherever  the  owner  grants  to  another  a 
right  to  enter,  without  giving  him  an  interest  in  the 
land.  Such  a  Hcense  is  personal  to  the  licensee  and  it 
is  subject  to  revocation  by  the  landowner  at  any  time 
before  it  is  acted  on.  But  when  acted  on  by  the 
licensee,  it  is  irrevocable  to  the  extent  it  has  been  acted 
on,  though  it  may  be  revoked  as  to  the  part  not  acted  on. 

If  the  license  is  "coupled  with  an  interest,"  as  it  is 
called,  it  can  not  be  revoked.  For  instance,  if  a  land- 
owner sell  cattle  on  his  land,  giving  the  right  to  the 
owner  to  leave  them  for  a  certain  time,  visit  them  daily 
and  take  them  away,  the  landowner  can  not  revoke  the 
license. 

§  218.  Effect  of  statute  of  frauds. — The  rule  that 
a  license  acted  upon  becomes  irrevocable  has  been  car- 
ried to  the  extent  of  practically  overriding  the  statute 
of  frauds  in  one  respect.  The  statute  of  frauds  provides 
that  no  conveyance  of  land  or  any  interest  therein  shall 
be  enforcible  unless  in  writing.  Nevertheless,  it  often 
happens  that  men  will  grant  to  each  other  licenses  by 
parol  to  enjoy  interests  in  each  other's  lands,  and  in  face 
of  the  prohibition  of  the  statute,  will  act  upon  them. 
This  is  especially  noticeable  in  the  matter  of  parol 
licenses  to  overflow  land  for  mill  purposes.  By  acting 
on  this  license,  the  licensee  acquires  an  interest  in  the 
overflowed  land,  which  the  statute  says  is  unen forcible 
because  granted  verbally.  Yet  the  injustice  of  allowing 
the  landowner  to  revoke  his  license,  after  the  licensee  has 
incurred  great  expense  on  its  faith,  is  so  glaring  that 
courts  of  equity  will  enjoin  the  revocation. 


148  ELi:ME;NTARY   LAW  [§  219 

§  219.  License  by  law. — This  sort  of  license  is  of 
an  entirely  different  nature  from  those  that  have  been 
considered.  It  arises  not  out  of  the  consent  of  the 
owner,  either  express  or  implied,  but  often  exists  con- 
trary to  the  intent  of  the  owner.  It  rests  upon  motives 
of  public  policy  and  the  general  welfare  of  the  com- 
munity. 

For  example,  in  time  of  conflagration  or  other  public 
calamity,  officers  and  even  private  persons  are  justified 
in  entering  on  any  premises  or  into  any  building  neces- 
sary or  reasonably  convenient  to  check  the  disaster;  and 
they  may  do  any  damage  that  is  reasonably  necessary 
even  to  the  extent  of  a  total  destruction. 

If  for  any  reason  a  public  highway  becomes  im- 
passable a  traveler  has  a  license  by  law  to  pass  around 
the  obstruction  by  going  over  the  adjacent  land,  and  for 
that  purpose  may  remove  a  fence. 

§  220.  Legal  process. — Officers  charged  with  the 
execution  of  legal  process  have  a  license  by  law  to  enter 
upon  land  when  necessary  to  do  so.  Ordinarily  the 
license  extends  only  to  the  land  and  not  to  the  dwelling- 
house,  which  is  regarded  as  the  castle  of  the  owner.  But 
in  case  of  felony  or  breach  of  the  peace  the  officer  may 
also  enter  the  house,  and  if  need  be  break  open  the  door 
to  effect  an  entrance.  So,  also,  if  the  command  of  the 
writ  necessarily  involves  entering  the  house,  as  in  the 
case  of  search  warrants  or  writs  for  possession,  the 
officer  is  entitled  to  enter  forcibly. 

§  221.  Condemnation  proceedings. — Similar  to  en- 
try under  legal  process  is  the  entry  for  purposes  of  con- 
demnation. Where  the  statute  provides  that  an  owner's 
land  may  be  taken  for  certain  public  purposes,  upon  com- 
pensation   being    made,    the    procedure    must    be    strictly 


§  222]  WRONGS    TO    REAL    PROPERTY  149 

followed,  and  any  violation  or  excess  may  be  deemed  a 
trespass.  Such  statutes  usually  provide  for  a  preliminary 
survey  of  the  ground  by  the  parties  contemplating  the 
condemnation  proceedings,  and  for  the  purpose  of  mak- 
ing such  surveys  an  entry  may  be  made  without  incurring 
the  liability  for  trespass. 

§  222.  Effect  of  exceeding  the  license. — The  na- 
ture and  extent  of  the  license  being  ascertained,  the 
Ucensee  is  bound  to  confine  himself  within  its  limits.  If 
tie  goes  beyond  he  loses  all  protectio;3  ?nd  is  regarded 
as  a  trespasser  from  the  beginning. 


CHAPTER  XVIII 


WRONGS  DONE  BY  ANIMALS 


Sec. 

223.  Injuries  by  animals. 

224.  Trespass     upon     land     by- 

animals. 

225.  Duty    of    owner   by    com- 

mon law. 


Sec. 

226.  The    law    in    the    United 

States. 

227.  Remedies. 

228.  Animals  not  trespassing. 

229.  Owner's      knowledge      of 

danger. 


§  223.  Injuries  by  animals. — The  subject  of  injury 
by  animals  is  in  some  respects  peculiar,  partaking  as  it 
does  of  the  nature  both  of  nuisance  and  negligence.  In 
this  place,  injuries  caused  by  the  voluntary  act  or  pur- 
pose of  the  owner  of  the  animals  will  not  be  considered, 
for  such  injuries  would  usually  be  deemed  an  assault  and 
battery  by  the  owner  himself. 

In  considering  the  law,  a  distinction  must  be  kept  in 
mind  from  the  outset  between  acts  that  are  a  trespass  on 
land  and  acts  that  are  not. 


§  224.  Trespass  upon  land  by  animals. — Every  un- 
warrantable entry  by  one's  animals  upon  the  land  of 
another  is  a  trespass,  whether  the  land  be  enclosed  or 
not.  If  any  part  of  the  animal  cross  the  line  the  trespass 
is  complete. 

§  225.  Duty  of  owner  at  common  law. — At  com- 
man  law  every  owner  of  animals  was  bound  at  his  peril 
to  keep  his  animals  from  straying  upon  another's  land. 
The  duty   was   absolute,   and   was   not   discharged  by  the 

150 


§228]  WRONGS   done:   by   ANIMAI.S  151 

exercise  of  the  highest  degree  of  care.  Hence,  no  ques- 
tion of  negHgence  was  involved.  The  absolute  obligation 
attached,  however,  only  as  to  such  animals  as,  from  their 
nature,  were  capable  of  damaging  land  or  crops.  And 
an  exception  was  made  in  favor  of  the  owners  driving 
cattle  along  a  highway,  and  in  such  cases  tlie  liability 
was  not  absolute,  but  the  owner  was  relieved  if  he  exer- 
cised ordinary  care  to  prevent  the  trespass. 

§  226.  The  law  in  the  United  States. — The  com- 
mon-law rule  of  absolute  liability  for  injuries  done  by  tres- 
passing animals  is  generally  in  force  in  the  United  States. 
In  some  the  wrong  is  not  treated  as  negligence  ;  in  others 
it  is  called  negligence,  but  the  negligence  is  conclu- 
sively presumed  from  the  fact  of  trespass.  Statutes 
and  judicial  decisions  in  some  states  have  modified  the 
English  rule  to  some  extent. 

§  227.  Remedies. — In  addition  to  the  usual  remedy 
by  an  action  for  damages,  the  landowner  was  entitled 
to  take  possession  of  the  trespassing  animal  and  keep  it 
until  the  damage  was  paid.  Or  he  could  drive  the 
animal  from  his  premises  to  the  highway,  using  no  more 
force  than  needful.  For  any  excess  he  would  in  turn 
become  liable  himself. 

§  228.  Animals  not  trespassing. — It  was  formerly 
held  at  common  law  that  the  owner  of  a  wild  beast,  or 
a  domestic  animal  known  to  be  dangerous,  was  bound  at 
his  peril  to  keep  it  confined,  and  that  it  would  be  no 
defense  that  the  owner  exercised  care  to  prevent  injury. 
The  dangerous  animal  was  deemed  a  nuisance  and  the 
keeping  it  was  an  unlawful  act. 

The  present  rule  is  that  for  injuries  done  by  an 
animal,  other  than  by  trespass,  the  owner  is  not  absolute- 
ly  liable,   but   liable   only    for   a    failure   to   use   ordinary 


152  i;i.KMENTARY    LAW  [§  229 

care.  Whether  the  animal  be  dangerous  or  tame,  the 
owner  is  hable  only  for  negligence.  The  care  required 
must,  of  course,  be  proportioned  to  the  danger  to  be 
apprehended.  In  order  to  charge  an  owner  or  keeper 
for  injuries  by  animals,  it  is  necessary  to  show  that  he 
had  knowledge  of  the  dangerous  propensity  and  failed  to 
take  proper  precautions. 

§  229.  Owner's  knowledge  of  danger. — Distinction 
is  made,  so  far  as  the  evidence  of  negligence  in  the  owner 
is  concerned,  between  (1)  animals  naturally  vicious  and 
(2)   tame  animals  that  have  become  vicious. 

As  to  naturally  wild  and  vicious  animals,  the  presump- 
tion is  conclusive  that  the  owner  knew  them  to  be  dan- 
gerous. 

As  to  animals  that  have  broken  through  the  tame- 
ness  of  their  nature  and  becofne  vicious,  there  is  no  pre- 
sumption that  the  owner  knew  of  the  dangerous  pro- 
pensity, but  proof  of  a  single  breach  brought  home  to 
the  owner's  notice  is  sufficient.  Thenceforward  they  are 
to  be  treated  the  same  as  naturally  wild  animals. 

As  to  tame  domestic  animals,  the  owner  is  bound  only 
for  a  negligent  failure  to  keep  them  confined,  and  then 
only  for  such  injuries  as  from  their  nature  they  are 
likely  to  commit. 


CHAPTER  XIX 

INTERFERENCE   WITH    DOMESTIC    AND    BUSINESS 

RELATIONS 


Sec. 

Sec, 

230. 

Introductory. 

231. 

Enticing    of    servant    and 

seduction   of  servant  or 

236. 

daughter. 

232. 

Interference   with   marital 
duties. 

237. 

233. 

Interference      with      con- 
tractual duties. 

238. 

234. 

Interference  with  business 
relations     by     force     or 
treats  of  force. 

239, 

235. 

Intentional  injury  to  busi- 

240. 

ness  relations  consti- 
tutes a  prima  facie  tort. 

Justification  for  prima 
facie  torts. 

Boycotting  noncompeti- 
tors. 

Combinations  and  con- 
spiracies in  competition. 

General  strikes  to  secure 
better  terms  from  em- 
ployer. 

The  remedy. 


§  230.  Introductory. — Not  only  does  the  law  seek 
to  protect  men  in  their  persons,  property  and  reputations, 
but  also  in  their  domestic  and  business  relations.  From 
early  times  domestic  relations  have  been  zealously  pro- 
tected and  in  recent  years  great  emphasis  has  been  put 
upon  the  proper  protection  of  business  relations.  In  the 
complex  conditions  of  modern  life  where  all  individuals 
are  mutually  dependent  upon  business  relations  the 
importance  of  protecting  them  and  of  keeping  open  the 
opportunities  for  their  easy  and  effective  formation  is 
obvious.  "A  free  market  for  goods  and  labor  is  the 
economic  ideal  of  this  branch  of  the  law,  and  any  inter- 
ference with  this  must  show  a  justification."  An  inter- 
ference which  is  not  justified  is  illegal  and  the  offending 
party  is  liable  in  damages  to  the  party  injured. 


§  231.     Enticing  of  servant  and  seduction  of  servant 

153 


154  ELEMENTARY    LAW  [§  232 

or  daughter. — It  was  formerly  held  that  where  a  serv- 
ant was  enticed  away  from  the  employment  of  his  master 
leaving  work  unfinished  that  the  master  was  entitled  to 
recover  damages  from  the  offender.  The  theory  of  this 
rule  was  that  the  master  had  a  right  to  the  services  of 
his  employe  at  least  through  the  completion  of  any  task  upon 
which  the  servant  was  engaged.  On  much  the  same  theory 
an  action  has  lain  from  early  times  for  the  seduction 
and  debauching  of  a  daughter  or  female  servant.  The 
foundation  of  this  action  was  to  recover  damages  for  the 
loss  of  services  rendered  by  the  servant  or  daughter.  In 
modern  times  courts  have  allowed  very  slight  proof  of 
service  to  be  sufficient  where  a  parent  is  suing  for  the 
seduction  of  his  daughter.  In  some  cases  the  proof  of 
loss  of  service  has  been  little  better  than  a  fiction  and  the 
parent  has  been  allowed  to  recover  for  injury  to  his  feel- 
ings which,  in  most  cases,  is  the  chief  element  of  damage. 

§  232.  Interference  with  marital  duties. — Where  a 
woman  is  induced  to  live  apart  from  her  husband  through 
improper  motives  of  the  defendant  the  husband  is  entitled 
to  recover  in  an  action  for  damages,  and  likewise,  a  wife 
may  recover  damages  from  a  defendant  who  by  improper 
persuasion  deprives  her  of  her  husband's  society.  A  com- 
mon example  of  the  exercise  of  this  right  is  a  suit 
brought  by  one  woman  against  another  for  the  alienation 
of  her  husband's  affections. 

§  233.  Interference  with  contractual  duties. — It  is 
the  policy  of  the  law  to  protect  contractual  obligations 
from  the  malicious  interference  of  a  third  party.  Thus, 
where  A  is  under  contract  to  work  for  B,  and  X  induces 
A  to  break  the  contract,  B  can  recover  from  X  in  an 
action  for  damages,  if  the  motive  of  X  was  to  injure 
the  plaintiff  or  to  benefit  himself  at  the  cost  of  the  plain- 


§  235]         INTERFERENCE   WITH    BUSINESS    RELATIONS  155 

tiff.  Thus  where  an  opera  singer  was  under  contract  to 
sing  for  three  months  at  the  plaintiff's  theatre  and  the 
manager  of  a  rival  theatre  induced  her  to  break  that 
contract  and  sing  at  his  own  theatre,  he  was  held  liable 
to  respond  to  the  plaintiff  in  damages. 


§  234.  Interference  with  business  relations  by  force 
or  threats  of  force. — It  is  unlawful  to  use  force  or 
threats  of  force  to  prevent  one  person  from  being  em- 
ployed by  another,  from  working  for  him,  or  from  doing 
business  with  him.  If  one  schoolmaster  by  setting  up  a 
new  school  next  to  his  competitor  takes  away  the 
patronage  of  the  rival  school,  he  is  not  guilty  of  a  legal 
wrong,  for  it  is  the  policy  of  the  law  to  favor  rather  than 
to  stifle  competition.  Should  the  new  schoolmaster,  how- 
ever, frighten  the  scholars  by  force  from  attending  the 
rival  school,  he  would  then  be  liable  for  damages.  A 
common  illustration  of  the  application  of  this  principle 
is  found  in  modern  labor  disputes  where  strikers  place 
pickets  to  prevent  persons  from  patronizing  or  working 
for  their  former  employers.  Where  they  attempt  to 
achieve  this  end  through  force  or  through  threats  of 
force,  their  actions  are  illegal  and  the  plaintiff  may 
recover  damages. 

§  235.  Intentional  injury  to  business  relations  con- 
stitutes a  prima  facie  tort. — When  intentional  injury 
was  done  to  business  relations  through  peaceful  and 
persuasive  methods  the  earlier  cases  were  in  hopeless 
conflict  as  to  whether  or  not  the  injured  party  could 
recover  and  what  conditions  were  essential  to  recovery. 
The  fundamental  principles  involved  never  received  any 
very  definite  formulation.  The  same  is  true  today  and 
the  law  on  this  subject  is  very  unsettled,  but  the 
fundamental  problem  has  been  restated  so  as  to  bring  out 


156  e;i,Ementary  law  [§236 

in  clear  relief  the  important  issues  involved.  The 
fundamental  principle  as  restated  is  that  an  intentional 
injury  to  the  business  of  the  plaintiff,  though  done 
through  persuasive  methods,  is  a  prima  facie  tort  and 
that  the  burden  is  upon  the  defendant  to  justify  his 
action.  For  example,  if  the  members  of  a  labor  union 
refuse  to  work  for  their  employer  unless  he  will  establish 
a  closed  shop,  and  as  a  result  the  employer  discharges 
all  the  nonunion  men  in  his  employ,  do  the  men  so  dis- 
charged have  an  action  for  damages  against  the  labor 
union?  This  is  clearly  a  prima  facie  tort  and  the  ques- 
tion arising  is  as  to  the  justification.  What  constitutes 
a  justification  is  a  matter  which  is  not  yet  settled 
and  upon  which  the  authorities  are  in  conflict. 

§  236.  Justification  for  prima  facie  torts. — The  pol- 
icy of  the  law  in  dealing  with  business  relations  is  gen- 
erally favorable  to  competition  and  consequently  there  is 
a  tendency  to  hold  that  fair  and  lawful  competition  is  a 
justification  for  the  resulting  injuries  to  a  competitor. 
If  the  defendant  goes  into  the  grocery  business  across 
the  street  from  the  plaintiff's  store  and  runs  the  busi- 
ness so  efficiently  as  to  deprive  the  plaintiff  of  his  cus- 
tomers by  giving  them  cheaper  and  better  service,  there 
can  be  no  doubt  but  that  the  courts  everywhere  would 
hold  the  public  benefits  of  such  competition  to  afford 
adequate  justification  for  the  prima  facie  tort.  The 
difficult  questions  arise  where  the  forms  of  competition 
are  more  strenuous  and  the  public  benefits  less  certain. 
Where  a  defendant,  for  example,  threatens  to  discharge 
any  of  his  employes  found  trading  at  the  competing  store 
of  the  plaintiff,  thereby  depriving  him  of  their  business, 
there  is  a  prima  facie  tort  for  which  the  justification  is 
not  so  clear.  It  is  true  that  the  defendant  is  engaged 
in   competition   but   the   public   benefits    of   this   particular 


§  237]  INTERFERENCE    WITH    BUSINESS    RELATIONS  157 

kind  of  competition  are  by  no  means  clear.  This  kind 
of  competition  has  been  upheld  in  some  courts,  but  there 
may  be  some  doubt  as  to  whether  it  would  be  generally 
followed. 

Where  the  injury  to  the  plaintiff  is  intentional  and 
malicious  and  it  is  not  done  by  a  competitor,  the  general 
rule  is  that  there  is  no  justification  and  that  the  plaintiff 
may  recover  though  there  is  a  minority  view  to  the  oppo- 
site effect.  Thus  where  an  employer  used  his  influence 
over  his  employes  to  prevent  them  from  trading  at  the 
store  of  the  plaintiff  which  was  not  in  any  way  com- 
peting with  the  defendant,  his  sole  motive  being  ill  will 
towards  the  plaintiff,  the  court  held  that  was  no  justifica- 
tion for  the  resulting  damage  to  tne  plaintiff  and  allowed 
him  to  recover. 

§  237.  Boycotting  noncompetitors.  —  Boycotting 
noncompetitors  is  generally  held  to  be  illegal.  A  typical 
case  is  where  *  a  labor  union  strikes  for  higher  wages, 
shorter  hours  or  some  similar  purpose,  and  then  to  make 
their  strike  more  effectual  against  the  plaintiff  they  refuse 
to  deal  with  or  work  for  any  of  the  customers  of  the 
plaintiff.  The  courts  have  held  this  boycott  to  be  unjusti- 
fiable and  have  allowed  the  plaintiff  to  recover  damages. 
The  theory  of  these  cases  seems  to  be  that  the  rival 
parties  are  not  competitors  engaged  in  securing  business 
or  employment  from  a  common  third  party,  but  that  the 
defendant  is  merely  trying  to  coerce  unwilling  third 
parties  to  take  sides  with  it  in  the  controversy  with  the 
plaintiff.  The  plaintiff  and  the  defendant  are  engaged  in 
a  bargaining  struggle  with  each  other  and  neither  may 
secure  allies  by  economic  coercion.  The  general  benefits 
of  such  a  struggle  are  not  such  as  to  justify  the  damages 
resulting  from  the  boycott. 


158  ELEMENTARY    LAW  [§  238 

§  238.  Combinations  and  conspiracies  in  competi- 
tion.— Where  it  is  lawful  for  a  single  person  to  injure 
the  business  of  his  competitor  and  justify  his  acts  through 
competition,  is  it  lawful  for  a  number  of  individuals  to 
combine  to  do  the  same  things?  Upon  this  question 
there  is  a  conflict  among  the  courts.  The  question  must 
ultimately  depend  upon  whether  combinations  of  such 
character  are  considered  desirable  to  the  public  welfare. 
Where  the  retail  lumber  dealers  combined  and  refused 
to  buy  of  any  wholesale  dealer  who  sold  directly  to  con- 
sumers or  lumber  brokers  of  whom  the  plaintiff  was 
one,  and  the  wholesale  dealers  therefore  refused  to  sell 
to  the  plaintiff,  he  was  allowed  to  recover  damages.  The 
theory  of  the  case  seemed  to  be  that  while  a  person  could 
deal  effectively  with  one  competitor,  it  would  be  unfair 
and  disastrous  to  competition  to  allow  his  competitors  to 
combine.  However,  there  are  probably  more  courts  that 
hold  the  contrary  view. 

This  question  is  perhaps  raised  in  its  most  interesting 
form  where  a  labor  union  strikes  for  a  closed  shop  and 
succeeds  in  having  all  the  nonunion  laborers  discharged. 
Are  the  latter  entitled  to  a  remedy?  Obviously  this  ques- 
tion depends  upon  whether  labor  unions  and  collective  bar- 
gaining are  considered  sufficiently  desirable  to  justify  the 
damage  done.  Several  states,  including  Massachusetts, 
Pennsylvania,  Maryland  and  Maine  hold  such  strikes  illegal 
as  against  the  nonunion  men  discharged.  Other  states  in- 
cluding New  York,  New  Jersey,  Indiana  and  Minnesota 
hold  the  contrary  view. 

§  239.  General  strikes  to  secure  better  terms  from 
employer. — Under  the  early  English  decisions  the  rule 
was  that  though  any  one  was  entitled  to  quit  service 
when  he  pleased,  yet  if  two  or  more  agreed  that  they 
would    quit   together    such    agreement   would   be   a   legal 


§  240]  INTKKFERENCE    WITH    BUSINESS    RELATIONS  159 

wrong.  It  was  called  a  criminal  conspiracy.  Some  of 
the  early  American  cases  adopted  these  decisions  as  the 
law.  With  the  progress  of  society,  the  rule  has  been 
greatly  modified  and  made  more  liberal  in  favor  of  those 
combining.  It  is  now  the  law  that  workmen  may  as  a 
body  agree  not  to  work  except  on  certain  conditions,  and 
in  pursuance  of  such  agreement  may  quit  service  and  they 
will  not  be  guilty  of  an  unlawful  act,  so  long  as  they 
confine  themselves  to  peaceable  methods.  It  seems,  how- 
ever, by  some  late  federal  decisions,  that  if  the  quitting 
necessarily  involves  the  breach  of  contract,  or  if  the 
time  of  quitting  be  fixed  so  as  to  cause  the  greatest  dam- 
age, a  combination  to  that  end  may  be  unlawful. 

The  means  used  must  at  all  events  be  peaceable.  As 
soon  as  threats,  menaces  and  intimidations  enter  into  the 
methods  of  the  combination,  there  is  an  actionable  v/rong, 
and  all  the  participators  may  be  subject  to  civil  as  well  as 
criminal  liability  for  conspiracy. 

§  240.  The  remedy. — Whenever  it  is  shown  that 
one  has  been  damaged  by  an  unlawful  interference  with 
his  domestic  or  business  relations,  he  has  a  civil  action 
against  the  wrongdoers,  and  the  injuries  sustained  are 
recoverable  as  damages. 

The  more  effective  and  prompt  remedy,  however,  is 
by  writ  of  injunction,  which  will  issue  where  irreparable 
damage  is  threatened  and  the  ordinary  legal  actions  do 
not  afford  adequate  redress. 


PART   III 


CRIMINAL  LAW 


CHAPTER  XX 


CRIMINAL  LAW 


Sec. 

Sec. 

241. 

Criminal  law  in  general. 

253. 

242. 

Crimes      in      the      United 

254. 

States. 

255. 

243. 

Capacity  to  commit  crime. 

244. 

Criminal      statutes,      how 
construed. 

256. 

245. 

Infamous    crimes. 

246. 

Crimes  classified. 

257. 

247. 

Compounding. 

258. 

248. 

Attempts. 

259. 

249. 

Aiding,    counseling,   etc. 

260. 

250. 

Uulawful  intent  and  overt 

261. 

act  must  unite. 

262. 

251. 

Criminal  carelessness. 

252. 

Ignorance    or    mistake    of 
fact. 

Ignorance  of  law. 

Self-defense. 

Offenses      committed      by 

wife. 
Where      principal       liable 

criminally  for  offense  of 

agent. 
Principal  and  accessories. 
Drunkenness. 
Insanity. 
Punishment. 
Jurisdiction    of   crimes. 
Territorial   jurisdiction   of 

crimes. 


§  24L  Criminal  law  in  general. — As  indicated  in 
a  preceding-  chapter  the  criminal  law  is  that  portion  of 
the  law  which  is  concerned  primarily  with  the  punishment 
of  wrongs  as  distinguished  from  that  part  of  the  law 
devoted  to  the  enforcement  of  rights.  In  a  civil  suit  the 
object  of  the  state  is  to  compel  one  person  to  make 
reparation  for  any  injury  his  acts  or  omissions  have 
caused  to  the  rights  of  another.  In  such  cases  the  state 
leaves  the  injured  party  to  his  own  initiative  as  to 
whether  or  not  he  will  bring  suit  against  the  offending 

160 


§  243]  CRIMINAL   IvAW  161 

party.  There  are  certain  acts,  however,  which  are  of 
such  a  nature  as  to  so  injure  society  as  a  whole  as  well 
as  damage  the  private  interests  of  individuals,  that  the 
state  sees  fit  to  prohibit  them  by  law.  When  the  law 
is  violated,  the  state,  not  content  to  leave  the  wrongdoer 
to  no  other  punishment  than  such  as  he  may  suffer  at 
the  hands  of  the  injured  individuals  in  a  civil  suit,  prose- 
cutes him  for  the  violation  of  the  law  and  seeks  to  pun- 
ish him  for  the  wrong.  The  action  is  brought  in  the 
name  of  the  state  and  by  the  officers  of  the  state  for  the 
purpose  of  enforcing  the  penalty  prescribed  for  the  par- 
ticular offense.  To  punish  and  thus  to  prevent  those 
acts  which  the  state  has  determined  to  be  'inimical  to 
the  public  welfare  is  the  function  of  the  criminal  law. 

§  242.  Crimes  in  the  United  States. — A  crime  is 
an  act  committed  or  omitted  in  violation  of  law.  The 
right  to  punish  criminals  rests  upon  gounds  of  policy,  and 
is  absolutely  necessary  for  the  preservation  of  society. 
Crimes  are  defined  and  their  punishment  regulated  by  the 
common  law  or  statute  law.  There  are  no  common-law 
crimes  which  are  recognized  by  the  federal  courts,  their 
criminal  jurisdiction  being  limited  to  offenses  defined  by 
the  laws  enacted  by  congress.  In  some  of  the  states  of 
the  Union  there  are  no  offenses  punishable  as  crimes 
except  those  which  are  made  so  by  statutory  law. 

§  243.  Capacity  to  commit  crime. — An  act  can  not 
be  criminal  unless  the  actor  is  a  responsible  being,  capable 
of  knowing  that  the  act  is  wrong  and,  in  some  states^ 
having  power  to  control  his  actions.  An  idiot  or  a 
lunatic,  or  a  young  child,  is  incapable  of  committing 
crime.  Under  seven  years  of  age  a  child  is  conclusively 
presumed  to  be  incapable;  between  the  ages  of  seven  and 
fourteen  it  is  incumbent  on  the  prosecution  to  prove 
11 — Elem.  Law. 


162  ELEMENTARY    I.AW  [§  244 

capacity;  persons  over  the  age  of  fourteen  are  presumed 
to  be  capable.  Aside  from  these  natural  infirmities  of 
idiocy,  lunacy  and  infancy,  persons  whose  powers  have 
become  enfeebled  by  disease,  drunkenness  or  any  cause, 
to  such  an  extent  that  they  have  lost  the  control  of  tlieir 
wills  and  are  unable  to  know  right  from  wrong  or  to 
understand  the  nature  of  the  act,  are  not  criminally 
responsible  in  some  jurisdictions  although  they  may  be 
liable  in  a  civil  action  for  the  wrongs  they  may  inflict 
upon  others. 

§  244.  Criminal  statutes,  how  construed. — Crimi- 
nal statutes  are  construed  liberally  in  favor  of  the  accused. 
It  matters  not  how  immoral  an  act  may  be,  or  how  in- 
jurious to  society,  it  can  not  be  punished  as  a  crime  unless 
it  is  prohibited  by  law. 

§  245.  Infamous  crimes. — Infamous  crimes  are 
held  by  the  federal  courts  to  be  such  as  are  punished  by 
imprisonment  at  hard  labor.  The  state  statutes  declaring 
what  are  and  what  are  not  infamous  crimes  are  not 
harmonious. 

§  246.  Crimes  classified. — Crimes  are  again  divided 
into  felonies  and  misdemeanors,  felonies  being  such 
offenses  as  are  punishable  with  death  or  imprisonment 
in  the  state  prison,  and  misdemeanors  being  offenses  of 
a  lower  grade,  for  which  lighter  punishments  are  pre- 
scribed. There  are  the  usual  statutory  provisions.  At  com- 
mon law  the  test  of  felony  was  the  forfeiture  of  the 
goods. 

§  247.  Compounding. — Compounding  an  offense  is 
where  one  for  a  consideration  agrees  not  to  prosecute  the 
offender  or  to  stop  a  prosecution  already  begun. 


§  250]  CRIMINAL    LAW  163 

§  248.  Attempts. — x\ttempts  to  commit  crime  are 
sometimes  declared  to  be  crimes  themselves.  A  mere 
naked  purpose  to  commit  a  crime,  however,  unaccom- 
panied by  an  act  in  furtherance  of  the  purpose,  is  not 
punishable  as  an  attempt.  The  criminal  law  deals  only 
with  overt  acts.  It  sometimes  happens  that  a  man  with 
deliberate  purpose  attempts  to  commit  a  crime  which  for 
some  cause  unknown  to  him  he  can  not  commit,  as  to  pick  a 
pocket  which  is  empty,  or  to  shoot  at  another  with  an 
unloaded  gun.  In  such  cases  he  is  generally  held  criminal- 
ly responsible. 

§  249.  Aiding,  counseling,  etc. — Advising,  coun- 
seling, encouraging  or  soliciting  another  to  commit  a 
crime  is  a  punishable  offense,  but  of  this  more  will  be 
said  when  we  come  to  speak  of  accessories. 

§  250.  Unlawful  intent  and  overt  act  must  unite. 
— In  every  crime  at  the  common  law  there  must  be  a 
union  of  the  unlawful  intent  and  the  overt  act,  and  both 
act  and  intent  must  be  proved.  This  is  not  true,  however, 
in  the  case  of  many  statutory  offenses,  such  as  violat- 
ing the  speed  limit.  In  most  cases  the  intent  is  inferred 
from  the  act  itself,  or  it  may  be  proved  by  circumstantial 
evidence.  There  is  much  confusion  in  the  decisions  of 
the  courts  of  the  various  states  as  to  the  character  of  the 
overt  act  necessary  to  constitute  the  offense.  Thrusting 
the  hand  into  an  empty  pocket  with  intent  to  steal  has 
been  declared  by  some  courts  to  be  an  attempt  to  commit 
larceny,  and  the  contrary  is  held  by  other  courts.  So  of 
shooting  at  another  with  a  blank  cartridge.  Bishop  says, 
as  we  think  correctly,  after  carefully  examining  the  con- 
flicting decisions,  "on  the  whole  we  may  deem  the  true 
doctrine  to  be  that  where  the  object  is  not  accomplished, 
simply  because  of  obstructions  in  the  way,  or  because  of 


164  ELEMENTARY    LAW  [§251 

the  want  of  the  thing  to  be  operated  upon,  where  the 
impediment  is  of  a  nature  to  be  wholly  unknown  to  the 
offender,  who  used  appropriate  means,  the  criminal  at- 
tempt is  committed." 

§  251.  Criminal  carelessness. — AVhere  through  the 
wanton  and  reckless  or  grossly  negligent  conduct  of  one 
an  accident  happens  which  causes  death,  the  act  is  crimi- 
nal, as  where  an  engineer  in  charge  of  a  locomotive  neg- 
lects his  duty,  or  one  on  a  building  throws  missiles  from 
a  house   into  a  public   street  where  persons   are   passing. 

§  252.  Ignorance  or  mistake  of  fact. — Ignorance 
or  mistake  of  fact  will  sometimes  deprive  an  unlawful 
act  of  its  criminal  character,  as  where  one  takes  the  prop- 
erty of  another  supposing  it  to  be  his  own,  or  obstructs 
a  highway  without  knowing  it  to  be  a  highway,  but  where 
a  statute  makes  an  act  unlawful  irrespective  of  guilty 
knowledge,  ignorance  or  mistake  is  no  defense. 

§  253.  Ignorance  of  law. — Ignorance  of  law  is  no 
excuse  for  the  commission  of  a  crime,  even  where  the 
statute  making  the  act  criminal  has  been  enacted  so 
recently  as  to  make  it  impossible  that  the  accused  should 
have  known  of  its  existence.  Such  ignorance  would  go 
far  to  mitigate  the  punishment,  and  would  give  good 
grounds  for  an  appeal  to  the  pardoning  power  in  cases 
of  conviction. 

§  254.  Self-defense. — Self-defense  is  a  right  which 
may  be  asserted  by  any  person,  where  he  is  in  apparently 
imminent  danger  of  suffering  either  loss  of  life  or  limb 
or  great  bodily  harm.  If  the  conduct  of  the  assailant 
is  such  as  to  produce  in  the  mind  of  a  reasonable  person 
a  belief  that  such  harm  is  intended,   the  person  assailed 


§  257]  CRIMINAL   LAW  165 

may  defend  himself  even  to  the  point  of  killing  his 
assailant,  though  the  danger  was  not  real  but  only  appar- 
ent. The  right  of  self-defense,  but  not  to  the  point  of 
taking  life,  also  exists  where  the  impending  danger  is  not 
so  serious. 

§  255.  Offenses  committed  by  wife. — An  offense 
committed  by  the  wife  in  the  presence  of  the  husband  is 
prima  facie  done  by  his  coercion,  though  this  presumption 
may  be  overcome  by  evidence  showing  that  she  acted  upon 
her  own  independent  volition,  and  in  such  a  case  she  and 
she  alone  is  criminally  responsible. 

§  256.  Where  principal  liable  criminally  for  of- 
fense of  agent. — A  principal  is  not  liable  for  the  crimi- 
nal acts  done  by  his  agent  unless  the  agent  is  acting  under 
orders  from  the  principal.  The  same  rule  applies  to 
master  and  servant.  Where  an  agent  or  servant  is  put 
in  charge  of  a  business,  such  as  publishing  a  newspaper 
or  keeping  a  saloon,  and  a  criminal  libel  is  published  in 
the  paper  or  liquor  is  unlawfully  sold  in  the  saloon,  the 
owner  of  the  paper  or  the  proprietor  of  the  saloon  may  be 
punished  criminally   for  the  act  of  the  agent  or  servant. 

§  257.  Principal  and  accessories. — In  the  commis- 
sion of  crimes  there  may  be  principals  and  accessories. 
To  constitute  one  a  principal  he  must  be  actually  or  con- 
structively present  when  the  crime  is  committed,  as  where 
one  does  the  act,  and  another  stands  near  by  to  give 
assistance  or  give  warning  of  the  approach  of  the  officers. 
In  such  case  both  are  principals. 

An  accessory  before  the  fact  is  one  who  is  not  the 
chief  actor  in  the  commission  of  a  crime,  nor  near  enough 
at  the  time  to  give  assistance,  but  procures,  counsels  or 
commands  another  to  commit  it.     An  accessory  after  the 


166  ELEJMENTARY    LAW  [§  258 

fact   is   one  who,   knowing  that  a  crime  has  been   com- 
mitted, receives,  relieves,  comforts  or  assists  the  criminal. 

§  258.  Drunkenness. — Voluntary  drunkenness  will 
not  excuse  crime.  Where,  as  a  result  of  habitual  drunken- 
ness, one  becomes  permanently  diseased  to  the  extent 
that  he  has  lost  his  will  power  and  is  incapable  of 
knowing  right  from  wrong,  he  is  incapable  of  com- 
mitting crime.  Some  courts  have  held  that  voluntary 
drunkenness  aggravates  a  crime,  but  the  better  opinion  is 
now  to  the  contrary.  Drunkenness  of  the  accused  at  the 
time  of  the  commission  of  the  offense  may  be  given  in 
evidence  to  show  want  of  malice,  premeditation  or  intent. 

§  259.  Insanity. — Insanity,  where  it  is  such  as  to 
prevent  the  accused  from  distinguishing  right  from  wrong, 
or  appreciating  the  nature  of  his  act,  will  relieve  him 
of  criminal  responsibility,  and  if  from  all  the  facts  in 
the  case  the  jury  have  a  reasonable  doubt  as  to  the 
sanity  of  the  accused  they  should  acquit. 

§  260.  Punishment. — Punishment  is  inflicted  for 
the  public  good.  The  same  act  may  be  punishable  as  a 
crime  and  be  a  wrong  to  the  individual  citizen,  in  which 
case  the  punishment  of  the  crime  does  not  prevent  the 
citizen  from  seeking  redress  in  a  civil  action  for  the 
damage  done  to  him  personally.  The  individual  who 
suffers  in  such  a  case  may  compromise  with  the  offender 
and  waive  his  right  to  redress,  but  this  is  no  bar  to  a 
prosecution  of  the  offender  by  the  state. 

The  object  of  punishment  is  to  prevent  crime,  and  this 
is  effected  by  imposing  pecuniary  fines  and  by  placing  the 
offender  under  restraint  for  a  given  period  of  time,  with 
the  double  view  of  reforming  the  prisoner  and  deterring 
others    from   committing   like   offenses,    and    in   cases   of 


§  262]  CRIMINAL    LAW  167 

murder,  high  treason  and  other  crimes  of  a  heinous  char- 
acter, capital  punishment  is  sometimes  inflicted.  In  many 
states  the  jury  passes  upon  the  question  of  the  prisoner's 
guilt,  and  the  court  fixes  the  measure  of  punishment 
within  the  limits  prescribed  by  the  statute.  In  other 
states  the  jury  has  this  power.  In  the  federal  courts  the 
jury  passes  only  upon  the  question  of  the  prisoner's  guilt. 
Sometimes,  in  addition  to  the  penalties  of  fine  and  im- 
prisonment, the  offender  is  disfranchised  and  is  made 
incompetent  to  testify  as  a  witness. 

§  261.  Jurisdiction  of  crimes. — The  jurisdiction  to 
try  and  punish  offenders  against  state  laws  is  lodged  in 
the  courts  of  the  state  within  whose  borders  the  offenses 
are  committed.  Offenses  against  the  laws  of  the  United 
States  are  within  the  exclusive  jurisdiction  of  the  federal 
courts  within  their  respective  districts.  This  is  what  may 
be  called  geographical  jurisdiction.  Jurisdiction  may  de- 
pend also  on  the  class  of  crimes  the  court  may  take 
cognizance  of.  Petty  offenses  are  tried  by  magistrates 
without  the  formality  of  indictment  or  information,  while 
graver  charges  are  only  cognizable  by  superior  courts,  in 
which  the  indictment  is  preferred  by  the  grand  jury  and 
the  trial  is  by  a  petit  jury.  As  to  crimes  committed  on 
the  high  seas,  the  jurisdiction  of  nations  is  determined 
by  treaties  and  the  law  of  nations. 

§  262.  Territorial  jurisdiction  of  crimes. — Ordi- 
narily, criminal  laws  have  no  force  beyond  the  boundaries 
of  the  state  enacting  the  law.  But  cases  arise  where 
crimes  are  committed  partly  in  one  state  or  county  and 
partly  in  another.  If  one  enters  into  a  conspiracy  with 
others  to  commit  a  crime  in  another  state,  and  the  crime 
is  committed,  he  may  be  tried  and  punished  in  the  state 
where  the  crime  is  committed,  though  before  the  trial  he 


168  ELEMENTARY    LAW  [§  262 

may  never  have  been  personally  within  the  limits  of  that 
state.  So  if  one  stands  near  a  boundary  line  and  shoots 
across  it,  and  the  shot  takes  effect  upon  a  person  in 
another  state  or  county  he  may  be  tried  in  the  jurisdic- 
tion where  the  shot  took  effect.  If  a  fatal  blow  is  given 
in  one  state  and  the  victim  removes  to  another  before 
death  ensues,  the  assailant  must  be  tried  in  the  jurisdiction 
where  the  blow  was  given,  though  some  courts  hold  that 
jurisdiction  rests  concurrently  in  the  courts  of  both 
localities.  Offenses  committed  on  board  ships  are  gen- 
erally punishable  in  the  country  to  which  ships  belong. 
Crimes  committed  on  private  ships  in  foreign  ports  are 
punishable  in  foreign  courts  if  they  are  of  sufficient 
gravity  to  endanger  the  peace  and  tranquility  of  the 
port,  but  otherwise  they  are  punishable  by  the  courts  of 
the  country  to  which  the  ship  belongs.  The  rights  of 
subjects  of  one  country  traveling  or  residing  in  another 
are  generally  regulated  by  treaty  stipulations.  In  the 
absence  of  such  stipulations  the  rules  as  above  stated 
will  prevail.  By  the  statutes  of  some  states,  where  a 
theft  is  committed  in  one  state  and  the  goods  are  carried 
to  another,  the  state  in  which  the  offense  originated  has 
exclusive  jurisdiction,  while  a  different  rule  prevails  in 
other  states. 


CHAPTER   XXI 


CRIMINAL   OFFENSES 


Sec. 

263.  Criminal   offenses   in  gen- 

eral. 

264.  Abortion. 

265.  Adultery. 

266.  Fornication. 

267.  Incest. 

268.  Rape. 

269.  Seduction. 

270.  Abduction  and  kidnaping. 

271.  Bestiality — Sodomy. 

272.  Affray. 

273.  Arson. 

274.  Assault. 

275.  Assault  and  battery. 

276.  Assault  with  intent. 

277.  Justification  for  assault. 

278.  False  imprisonment. 

279.  Barrarty,    champerty    and 

maintenance. 

280.  Bigamy  or  polygamy. 

281.  Bribery. 

282.  Burglary. 

283.  Robbery. 

284.  Embezzlement. 


Sec. 

285.  Larceny. 

286.  C  h  e  a  t  i  n  g — False      pre- 

tenses. 

287.  Conspiracy. 

288.  The  agreement. 

289.  Dueling. 

290.  Extortion. 

291.  Forgery. 

292.  Homicide. 

293.  Voluntary      manslaughter. 

294.  Involuntary  manslaughter. 

295.  Justifiable  homicide. 

296.  Malice. 

297.  Libel. 

298.  Malicious    trespass    or 

malicious  mischief. 

299.  Mayhem. 

300.  Nuisance. 

301.  Perjury. 

302.  Piracy. 

303.  Riot. 

304.  Treason  and  misprision  of 

treason. 


§  263.  Criminal  offenses  in  general. — Every  state 
in  the  Union  has  its  own  way  of  defining  crimes  and 
declaring  what  punishment  shall  be  inflicted  upon 
offenders.  We  shall  not  undertake  to  give  a  compilation 
of  the  various  statutory  enactments,  but  shall  content  our- 
selves by  giving  in  brief  the  essential  ingredients  of  such 
crimes  as  are  recognized  and  punished  in  most  of  the 
states. 

169 


170  ELEMENTARY    LAW  [§  264 

§  264.  Abortion. — Abortion  consists  of  causing  the 
miscarriage  or  premature  delivery  of  a  woman.  The 
statutes  of  some  of  the  states  require  that  the  child  shall 
have  quickened  in  the  womb  at  the  time  of  the  commis- 
sion of  the  crime.  The  laws  of  other  states  declare 
that  the  offense  may  be  complete  at  any  time  after 
gestation  has  begun.  The  consent  of  the  mother  is  no 
defense. 

§  265.  Adultery. — Adultery  is  voluntary  sexual  in- 
tercourse with  another  man's  wife.  The  woman  must  be 
married;  she  must  be  another  man's  wife,  and  whoever, 
married  or  single,  has  illicit  intercourse  with  her  becomes 
guilty  of  adultery.  Such  are  the  essentials  of  adultery 
at  common  law.  In  some  states  the  offender  who  is 
married  is  alone  held  guilty;  in  other  states,  where  the 
intercourse  is  between  a  married  woman  and  a  single 
man,  the  woman  alone  is  guilty. 

§  266.  Fornication. — Fornication  is  voluntary  il- 
licit sexual  intercourse  under  circumstances  not  constitut- 
ing adultery.  Single  acts  of  fornication  have  been  made 
criminal  in  some  states,  while  in  others  it  is  punished  only 
when  it  is  habitual  and  notorious. 

§  267.  Incest. — Incest  is  sexual  intercourse  by  per- 
sons who  are  related  to  each  other  in  degrees  within 
which  marriage  is  prohibited  by  law.  It  is  a  crime  un- 
known to  the  common  law,  and  the  statutes  of  the  differ- 
ent states  must  be  consulted  to  ascertain  what  constitutes 
the  offense  in  any  given  locality. 

§  268.  Rape. — Rape  is  the  having  carnal  knowl- 
edge of  a  woman  forcibly  and  against  her  will.  Sexual 
intercourse  with  a  child  under  the  age  of  consent  fixed  by 


§  270]  CRIMINAI,  OFFENSES  171 

law,  with  an  insane  woman,  or  a  woman  in  a  condition 
in  which  she  can  not  consciously  consent,  or  when  con- 
sent is  extorted  by  fear,  is  rape,  though  no  actual  force 
be  used.  The  crime  is  not  complete  unless  there  is  some 
penetration  by  the  male  organ.  It  is  no  defense  to  a 
charge  of  rape  that  the  injured  woman  is  a  prostitute, 
though  her  evidence  would  be  regarded  with  suspicion. 
It  may  be  said  of  the  crime,  generally,  that  it  is  a  charge 
easily  made  and  hard  to  disprove.  If  the  woman  be  of 
good  repute  and  make  seasonable  outcry,  and  show  signs 
of  injury,  and  the  place  where  the  crime  was  perpetrated 
be  remote  from  observation,  and  if  the  offender  flee  to 
avoid  arrest,  her  testimony  is  of  great  weight.  A  male 
under  the  age  of  fourteen  is,  in  many  states,  conclusively 
presumed  to  be  incapable  of  committing  the  offense;  in 
other  jurisdictions  his  ability  to  commit  the  crime  is  mat- 
ter for  proof.  t 

§  269.  Seduction. — Seduction  is  the  enticing  by  a 
man  of  an  unmarried  woman  of  previous  chaste  char- 
acter, by  means  of  persuasions  and  promises,  to  have 
sexual  intercourse  with  him.  Some  statutes  require  the 
promise  to  be  a  promise  of  marriage.  Others  make  it 
a  crime  to  debauch  and  seduce  an  unmarried  female  of 
previous  chaste  character  without  regard  to  the  means 
employed.  Where  the  consent  is  given  merely  from 
carnal  lust  and  the  intercourse  is  from  mutual  desire, 
there  is  no  seduction.  If  the  woman  knew  the  man  to 
be  married  she  will  not  be  heard  to  say  that  she  con- 
sented to  the  intercourse  because  of  a  promise  of  mar- 
riage. 

§  270.  Abduction  and  kidnaping.  —  Abduction, 
though  not  a  common-law  crime,  is  made  a  crime  by  the 
statutes  of  most  of  the   states.      It   is  the  act  of  taking 


172  ELEMENTARY   LAW  [§  271 

away  or  detaining  a  woman  against  her  will,  or,  in  the 
case  of  minors,  against  the  will  of  their  parents  or  other 
person  having  lawful  charge  of  them.  In  a  more 
restricted  sense  it  is  the  unlawful  seizure  or  detention  of 
a  female  for  the  purpose  of  marriage,  concubinage  or 
prostitution.  Kidnapping  is  the  unlawful  seizure  of  any 
person  with  the  intent  to  remove  him  to  another  place. 
It  is  a  false  imprisonment  aggravated  by  the  intent  to 
carry  the  person  imprisoned  to  another  place.  By  the 
common  law  kidnapping  was  the  forcible  abduction  or 
stealing  away  of  a  man,  woman  or  child  from  their  own 
country  and  sending  them  into  another. 

§  271.  Bestiality — Sodomy. — The  first  is  the  cop- 
ulation of  man  or  woman  with  a  beast,  the  second  the 
unnatural  copulation  of  man  with  man  or  man  with 
woman.  Both  parties  are  guflty  of  sodomy  and  the  con- 
sent of  the  parties  is  no  defense.  These  crimes  are  gen- 
erally spoken  of  as  the  abominable  and  detestable  crimes 
against  nature,  and  as  crimes  not  to  be  named  among 
Christians. 

§  272.  Affray. — An  affray  is  the  fighting  together 
of  two  or  more  persons,  either  by  mutual  consent  or 
otherwise,  in  some  public  place,  to  the  terror  of  the 
people.  There  must  be  some  stroke  given  or  offered; 
mere  quarreling  and  the  use  of  threatening  words  are 
not  sufficient.  If  the  fighting  is  in  private  it  is  not  an 
affray.  Prize  fighting  as  it  is  now  practiced  is  not  an 
affray,  but  it  is  made  a  misdemeanor  by  the  laws  of 
most  of  the  states  of  the  Union.  In  some  states  the 
fighting  must  be  by  mutual  agreement  to  constitute  an 
affray;  elsewhere  it  is  held  that  the  mere  fighting  in  a 
public  place,  with  or  without  mutual  consent,  constitutes 
the  offense. 


§  275]  CRIMINAI,   OFFENSES  173 

§  273.  Arson. — Arson,  as  defined  by  Coke,  is  the 
malicious  and  voluntary  burning  of  the  house  of  another 
by  night  or  by  day.  There  must  be  an  actual  burning  of 
some  part  of  the  building,  though  it  is  not  necessary  that 
any  part  should  be  wholly  consumed.  The  burning  is 
sufficient  to  constitute  the  offense  when  any  part  of  the 
building  is  charred,  but  a  mere  scorching  or  discolora- 
tion is  not  enough.  Formerly  the  crime  of  arson  was 
limited  to  the  burning  of  dwelling-houses,  but  it  now 
has  a  wider  scope,  under  the  legislation  of  the  various 
states,  so  that  stables,  mills,  churches,  warehouses,  school- 
houses  and  other  structures  may  be  the  subjects  of  arson. 
The  burning  must  be  malicious  and  wilful,  and  not  merely 
negligent.  The  intent  to  injure  is  an  essential  ingredient 
of  the  crime,  but  this  intent  will  be  generally  presumed. 

§  274.  Assault. — A  simple  assault  as  defined  by 
Bishop  is  an  unlawful  physical  force  partly  or  fully  put 
in  motion,  creating  a  reasonable  apprehension  of  immedi- 
ate physical  injury  to  a  human  being.  It  is  essential  that 
the  force  intended  to  be  applied  should  be  put  in  motion. 
Mere  preparation  or  threats  are  not  an  assault.  There 
must  be  some  act  which  if  not  stopped  may  apparently, 
or,  as  some  courts  hold,  actually,  produce  injury.  Strik- 
ing at  another  within  striking  distance  though  the  blow 
comes  short,  throwing  a  missile  at  another,  aiming  a  gun 
within  gunshot,  pointing  a  pitch-fork  at  a  person  within 
reach — such  act  coupled  with  a  present  intention  to  do 
violence  would  be  an  assault. 

§  275.  Assault  and  battery. — A  battery  is  the  un- 
lawful touching  of  another  in  a  rude,  insolent  or  angry 
manner.  To  spit  upon  one,  to  set  a  dog  upon  him  which 
touches  or  bites  him,  to  touch  or  lay  hold  of  the  clothes 
of   another,    is    sufficient.      There    must   be    intentional 


174  ElvEMENTARY    LAW  [§  276 

physical  contact.     If  this  is  lacking  it  can  amount  to 
no  more  than  a  simple  assault. 

§  276.  Assault  with  intent. — An  assault  with  in- 
tent is  where  an  intent  to  commit  a  specific  crime  accom- 
panies the  assault,  as  an  assault  with  intent  to  kill,  to  rob, 
to  rape  or  to  inflict  some  serious  bodily  injury.  In  order 
to  convict  in  such  cases  the  specific  intent  charged  against 
the  accused  must  be  proved,  and  this  intent  may  be  in- 
ferred from  his  acts,  words  and  the  circumstances  sur- 
rounding the  transaction.  The  apparent  consent  of  per- 
sons who  are  legally  incapable  of  giving  consent  is  no 
defense  to  a  charge  of  assault  with  intent.  In  case 
of  assault  with  intent  to  commit  a  crime,  there  must 
be,  according  to  the  rule  established  in  some  courts,  a 
present  ability  in  the  assailant  to  inflict  the  injury,  but 
the  better  opinion  is  that  it  is  sufficient,  if  there  is  a 
reasonably  apparent  present  ability,  so  as  to  create  an 
apprehension  that  the  injury  may  be  inflicted,  and  cause 
the  person  threatened  to  resort  to  measures  of  self- 
defense. 

§  277.  Justification  for  assault. — No  one  can  be 
held  to  be  guilty  of  an  unlawful  assault  who  has  a  suf- 
ficient justification  or  excuse  for  his  act,  as  where  it  is 
in  the  necessary  defense  of  his  person,  his  property,  or 
the  persons  to  whom  he  owes  the  duty  of  protection,  as 
wife,  child  or  servant.  As  we  have  seen,  a  person  who 
shoots  at  one,  believing  him  to  be  another  person  whom 
he  intends  to  kill,  is  guilty  of  shooting  with  intent  to 
kill,  and  shooting  or  throwing  a  missile  into  a  crowd  is 
an  assault  with  intent  to  kill  or  injure  any  one  who  may 
be  in  reach  of  the  gun  or  the  missile  thrown. 


fc>' 


§  278.     False    imprisonment. — False    imprisonment 


§  279]  CRIMINAL  OFFENSES  175 

is  the  unlawful  restraint  of  a  person  contrary  to  his  will, 
either  with  or  without  process  of  law.  There  must  be 
a  forcible  detention  of  the  person,  and  the  detention  must 
be  unlawful.  An  officer  who  arrests  and  holds  one  in 
obedience  to  a  writ  directed  to  him  from  a  court  of 
competent  jurisdiction  is  not  guilty  of  the  ofifense  unless 
there  was  something  on  the  face  of  the  writ  itself  show- 
ing that  it  was  not  properly  issued. 

§  279.     Barratry,     champerty    and    maintenance. — 

These  offenses  were  all  punishable  at  common  law. 
Barratry  is  the  offense  of  frequently  stirring  up  quarrels 
and  suits,  either  at  law  or  otherwise.  The  indictment 
should  charge  the  offender  with  being  a  common  barrator, 
and  there  must  be  proof  of  at  least  three  instances  of 
ott'ending.  Champerty  is  a  bargain  with  a  party  to  a 
suit  for  a  portion  of  the  land  or  other  matters  sued  for, 
in  case  of  a  successful  termination  of  the  suit  which  the 
champertor  undertakes  to  carry  on  at  his  own  expense. 
Contracts  by  attorneys  for  purely  contingent  fees,  to  be 
paid  out  of  the  damages  recovered,  were  formerly  con- 
sidered champertous  and  void,  but  they  are  looked  upon 
with  more  indulgence  now  and  the  practice  of  making 
such  contracts  is  common,  though  it  must  be  admitted 
that  they  have  a  pernicious  influence  on  the  character  and 
standing  of  attorneys  who  make  them.  Where  such  con- 
tracts exist  the  attorney  becomes,  in  effect,  one  of  the 
real  parties  to  the  action.  In  some  states  it  is  held  that 
the  purchase  and  sale  of  land  in  litigation,  or  in  the 
adverse  possession  of  another,  is  a  champertous  contract 
and  will  not  be  enforced.  Maintenance  is  a  malicious, 
or  at  least  officious,  interference  in  a  suit  in  which  the 
offender  has  no  interest,  to  assist  one  of  the  parties  to  it 
against  the  other  with  money  or  advice  to  prosecute  or 
defend   the   action,   or,    as   it   is   otherwise   defined,    it   is 


176  ELEMENTARY    LAW  [§  280 

the  intermeddling  of  a  stranger  in  a  suit  for  the  purpose 
of  stirring  up  strife  and  continuing  the  htigation. 

§  280.  Bigamy  or  polygamy. — One  already  mar- 
ried and  liaving  husband  or  wife  living,  who  marries  a 
second  time,  is  guilty  of  bigamy.  These  are  statutory  and 
not  common-law  crimes.  If  the  first  marriage  has  been 
annulled  by  a  court  of  competent  jurisdiction,  the  parties 
are  free  to  contract  a  second  marriage,  and  a  person 
whose  husband  or  wife  has  been  absent  for  a  certain 
number  of  years  without  being  known  by  such  person 
to  be  living  may  innocently  contract  a  second  marriage. 
Where  there  has  been  no  valid  divorce  from  the  first 
husband  or  wife  and  a  second  marriage  is  contracted  on 
the  advice  of  counsel  and  in  the  honest  belief  that  the 
divorce  is  valid,  it  is  generally  no  defense,  though  it  has 
been  held  that  where  the  belief  was  on  reasonable  grounds 
after  due  inquiry,  it  is  a  defense  to  a  criminal  prosecu- 
tion. 

§  281.  Bribery. — Bribery  at  common  law  was  lim- 
ited to  the  giving  to  a  judge  or  other  officer  connected 
with  the  administration  of  justice  any  undue  reward  to 
influence  his  behavior  in  office.  A  better  definition  is 
the  giving  or  receiving  of  a  reward  to  influence  any 
official  act,  whether  of  a  judicial  officer  or  not.  The 
statutes  of  the  states  have  extended  the  scope  of  the 
crime  until  it  now  includes  judges,  jurors,  election 
officers,  voters,  legislators  and  all  public  officials  who  are 
placed  in   responsible   stations  to  perform   public  service. 

§  282.  Burglary. — Burglary  at  common  law  is  the 
breaking  and  entering  of  the  dwelling-house  of  another 
in  the  night-time  with  the  intent  to  commit  a  felony 
therein.     There  must  be  some  breaking,  and  if  the  entry 


§  283]  CRIMINAI,   OFFENSES  177 

is  made  through  an  open  door  or  window  the  offense  is 
not  complete.  The  raising  of  a  closed  window  or  the 
turning  of  the  knob  or  lifting  the  latch  of  a  closed  door 
is  sufficient.  So  if  there  is  an  entry  through  an  open 
door,  but  a  breaking  of  an  inner  door,  it  is  sufficient. 
There  must  be  a  breaking  of  some  part  of  the  house; 
forcing  the  door  of  an  area  wall  or  breaking  open  a 
chest  or  trunk  in  the  house  will  not  constitute  a  breaking. 
If  one  with  intent  to  commit  a  felony  knocks  at  a  door, 
and  an  inmate  opens  it  and  he  thus  gets  in,  it  is  a  con- 
structive unlawful  breaking.  So  where  one  gains  admit- 
tance upon  a  false  pretense  of  having  business  with  an 
inmate,  or  by  collusion  with  the  servants  of  the  house- 
hold. An  entry  is  essential,  but  the  slightest  entry  is  suf- 
ficient. If  any  part  of  the  body  or  a  weapon,  a  stick  or 
anything  in  the  offender's  hands  is  thrust  into  the  house 
through  a  door  or  window  which  has  been  broken,  it  will 
constitute  an  entry.  The  entry  need  not  be  at  the  same 
time  as  the  breaking,  but  both  must  be  in  the  night.  Night 
for  the  purposes  of  this  crime  begins  when  daylight  ends 
and  when  countenances  can  not  be  easily  discerned,  and 
ends  when  there  is  sufficient  daylight  to  discern  them. 
The  building  broken  into  must  by  the  common  law  be  a 
dwelling.  The  statutes  of  many  states  have  included 
stores  and  many  structures  not  used  as  dwellings.  In 
some  states  a  breaking  and  entering  in  the  daytime  with 
intent  to  commit  a  crime  is  declared  to  be  burglary.  The 
intent  to  commit  a  crime  must  exist.  Ordinarily  the 
intent  of  the  burglar  is  to  steal,  but  it  may  be  to  commit 
any  other  crime.  Whatever  the  intent  is  it  must  exist  at 
the  time  of  the  breaking  and  entering. 

§  283.     Robbery. — Robbery   is   the   taking  with   fe- 
lonious   intent    of    any    money    or    goods    of    any    value 
belonging  to  another   from  the  person  of  another,   or  in 
12 — Elem.  Law. 


178  ELEMENTARY    LAW  [§  284 

his  presence  against  his  will  by  force  or  violence  or  by 
putting  him  in  fear.  The  robber  must  take  and  remove 
the  property  taken,  the  thing  taken  must  be  the  subject 
of  larceny,  the  force  used  must  be  before  or  at  the  time 
of  the  taking  and  of  such  character  as  to  make  it  evident 
that  it  was  intended  to  overpower  the  party  robbed  or  to  pre- 
vent resistance  on  his  part  and  not  merely  to  get  possession 
of  the  property.  The  mere  taking  the  property  from  another 
by  the  false  pretense  that  the  taker  is  an  officer,  or  the 
quiet  and  unobserved  picking  a  pocket,  or  the  snatching 
of  an  article  from  another's  hands  when  there  is  no 
struggle  or  resistance,  is  not  robbery.  The  fear  must 
be  such  as  would  intimidate  and  create  a  reasonable  ap- 
prehension of  danger.  The  person  robbed  need  not  be 
the  owner  of  the  property,  possession  is  enough.  If  the 
accused  acted  in  good  faith,  under  the  impression  that 
the  property  was  his  own,  there  is  no  robbery. 

§  284.  Embezzlement. — Embezzlement  is  not  a 
common-law  offense,  but  is  made  a  crime  by  state  stat- 
utes. It  is  like  larceny  in  its  effects  upon  the  owner, 
and  in  the  intent  of  the  offender,  but  it  differs  in  the 
important  particular  that  the  offender  comes  lawfully 
into  possession  of  the  money  or  thing  embezzled,  the 
criminal  act  being  the  fraudulent  and  unlawful  appro- 
priation of  it  to  his  own  use.  Bailees,  cashiers  or  tellers 
of  banks,  clerks,  public  officers,  agents  and  officers  of  cor- 
porations, bookkeepers,  in  short,  all  persons  entrusted 
with  the  care  of  money  or  property  belonging  to  others, 
who  unlawfully  and  with  fraudulent  intent  convert  it 
to  their  own  use,  are  embezzlers.  If  it  appears  that  the 
money  or  thing  taken  was  in  the  actual  or  constructive 
possession  of  the  owner,  the  offense  would  be  larceny  and 
not  embezzlement. 


§  286]  CRIMINAI,  OFFENSES  179 

§  285.  Larceny. — Larceny  is  the  unlawful  taking 
and  carrying  away  of  the  personal  property  of  another 
with  the  intent  to  deprive  the  owner  thereof.  Grand 
larceny  and  petit  larceny  are  distinguished  arbitrarily  by 
the  value  of  the  property  taken,  as  declared  by  the  stat- 
utes of  the  various  states.  What  is  grand  larceny  in  one 
state  may  be  only  petit  larceny  in  another. 

The  taking  must  be  secret  and  fraudulent,  and  it  is 
not  necessary  that  it  should  be  by  the  thief  in  person. 
If  the  thief  with  felonious  intent  induces  an  innocent  per- 
son to  take  the  personal  property  of  another  and  deliver 
it  to  him  it  is  an  unlawful  taking.  The  slightest  inten- 
tional removal  of  the  article  from  the  place  where  it  was 
before  is  a  carrying  away. 

It  is  not  necessary  that  the  person  from  whom  the 
property  is  taken  should  be  its  absolute  owner.  Any 
rightful  possession,  as  that  of  a  bailee  having  a  qualified 
right  of  property,  would  be  ownership  sufficient  to  sup- 
port a  charge  of  larceny.  Goods  in  the  possession  of 
an  agent  or  servant  of  another  are  constructively  in  the 
possession  of  the  owner  or  master,  provided  the  servant's 
custody  was  obtained  from  the  master,  though  he  may  be 
personally  ignorant  of  their  existence  or  whereabouts.  If 
possession  is  obtained  lawfully  the  subsequent  carrying 
away  with  the  unlawful  intent  will  not  make  it  larceny. 
The  unlawful  intent  to  carry  away  and  convert  the  prop- 
erty must  exist  at  the  time  of  taking.  If  by  a  fraud- 
ulent trick  the  owner  is  induced  to  part  with  the  posses- 
sion of  his  property  temporarily,  the  thief  intending  to 
appropriate  it  unlawfully,  it  is  larceny, 

§  286.  Cheating — False  pretenses. — Cheating  by 
false  pretenses  is  where  any  person  by  a  false  and  fraud- 
ulent representation  or  statement  of  an  existing  or  past 
fact,    made    with    a    knowledge    of    its    falsity    and   with 


180  ELEMENTARY    EAW  [§  287 

intent  to  deceive  and  defraud,  induces  another  to  part 
with  money  or  property  of  vakie.  It  is  not  larceny 
because  that  implies  that  the  owner's  goods  were  taken 
from  him  without  his  consent.  No  mere  expressions  of 
opinion  nor  promise  for  future  conduct,  however  fraud- 
ulent and  false,  will  amount  to  a  false  pretense.  The 
fraudulent  representation  must  be  of  such  a  character  as 
would  mislead  a  person  of  ordinary  intelligence.  The 
injured  party  must  be  deceived,  the  representations  must 
be  false  and  must  be  believed  to  be  true  by  the  party 
defrauded.  The  offender  must  fraudulently  intend  to 
obtain  the  property  and  to  deprive  the  owner  of  the  use  of 
it,  and  the  offense  is  not  complete  until  the  owner  has 
parted  with  his  property.  It  is  no  defense  to  show  that 
other  motives  influenced  the  owner  in  part.  It  is  suffi- 
cient if  the  fraudulent  and  false  pretense  charged  were 
a  part  of  the  moving  cause  without  which  the  owner 
would   not  have  parted   with   his   property. 

§  287.  Conspiracy. — A  conspiracy  is  a  combina- 
tion of  two  or  more  persons,  by  some  concerted  action, 
to  accomplish  some  criminal  or  unlawful  purpose,  or  to 
accomplish  some  purpose  not  in  itself  criminal  or  unlaw- 
ful, by  criminal  or  unlawful  means.  In  many  states 
conspiracy  is  indictable  as  a  common-law  offense,  in 
others  there  is  no  common-law  jurisdiction  of  the  offense. 

§  288.  The  agreement. — The  agreement,  which  is 
an  essential  ingredient  of  the  crime,  may  be  express  or 
implied,  and  its  existence  may  be  proved  by  circumstantial 
evidence.  Any  one  who  enters  a  conspiracy  adopts  all 
the  previous  acts  of  his  coconspirators  in  forming  and 
carrying  out  the  criminal  purpose,  and  is  bound  by  all 
that  is  done  by  them  afterwards  unless  he  withdraws  and 
renounces  his  connection  with  it.     If  the  conspiracy  is  to 


§  291]  CRIMINAL,  OFFENSES  181 

commit  a  felony,  the  conspiracy  is  merged  in  the  consum- 
mated act.  The  mere  unlawful  agreement  constitutes  the 
crime,  whether  the  unlawful  purpose  is  accomplished  or 
not.  All  parties  to  a  conspiracy  are  liable,  in  a  civil 
suit  for  damages,  to  the  injured  person. 

§  289.  Dueling. — Dueling  is  made  a  crime  by  the 
statutes  of  all  the  states.  If  death  ensues  all  the  parties, 
principals  and  seconds  are  guilty  of  murder.  The  sending 
or  carrying  of  a  challenge  to  fight  a  duel  is  an  indictable 
offense  in  most  of  the  states. 

§  290.  Extortion. — Extortion  signifies  in  an  en- 
larged sense  any  oppression  under  color  of  right,  but  in 
a  stricter  and  more  accurate  sense  it  is  the  demanding 
and  receiving  of  money  by  an  officer  by  color  of  his 
office,  either  where  none  is  due  or  where  the  sum  de- 
manded and  received  is  in  excess  of  the  amount  due.  It 
is  an  offense  which  can  be  committed  only  by  officers, 
whether  federal  or  state,  ministerial  or  judicial.  One  who 
acts  as  an  officer  can  not  plead  in  defense  to  a  charge  of 
extortion  that  he  did  not  hold  the  office  rightfully.  The 
most  common  form  of  the  offense  is  the  demanding  and 
receiving  fees  for  official  services  in  excess  of  the 
amounts  fixed  by  law. 

§  291.  Forgery. — Forgery  at  common  law  is  the 
falsely  making  or  materially  altering,  with  intent  to 
defraud,  any  instrument  in  writing  which  if  genuine  would 
impose  a  legal  liability.  The  false  making  must  be  with 
the  intent  that  it  shall  appear  to  be  the  act  of  another, 
and  with  the  intent  to  defraud.  One  who  honestly  be- 
lieves that  he  has  the  authority  to  sign  the  name  of 
another,  or  to  make  a  material  alteration  in  a  written 
instrument,    is    not    guilty    of    forgery    though    no    such 


182  ELEMENTARY    LAW  [§  292 

authority  existed  in  fact.  While  the  intent  to  defraud  is 
necessary,  it  is  not  essential  that  the  party  intended  to 
be  defrauded  should  be  injured  thereby.  It  is  no  defense 
for  the  forger  to  say  that  his  work  was  done  so  blunder- 
ingly that  it  would  deceive  only  stupid  and  careless  per- 
sons. An  alteration  of  an  instrument  which  though 
intended  to  do  so  does  not  in  fact  and  law  alter  the 
rights  or  obligations  of  the  parties  to  it  is  not  a  forgery, 
though  the  party  making  it  did  so  with  a  fraudulent 
intent.  The  uttering  of  the  forged  instrument  is  com- 
plete when  the  forger  by  words  or  actions  declares  that 
the  forged  instrument  is  genuine  with  a  knowledge  that 
it  is  false.  By  the  statutes  of  most  states  the  possession 
of  forged  or  counterfeit  bank  notes  with  intent  to  utter 
or  pass  them  is  punishable  as   forgery. 

§  292.  Homicide. — Homicide  is  the  killing  of  a 
human  being,  and  it  may  be  a  lawful  and  an  innocent 
act  or  a  criminal  act.  Where  it  is  a  criminal  it  is 
designated  as  murder  or  manslaughter.  In  most  of  the 
states  there  are  grades  of  murder,  as  murder  in  the 
first  degree,  murder  in  the  second  degree. 

The  highest  grade  of  murder,  that  is,  murder  in  the 
first  degree,  is  the  unlawful  and  felonious  killing  of 
another  human  being  with  malice  aforethought  and  with 
deliberate  premeditation.  Murder  in  the  second  degree 
is  like  murder  in  the  first  degree,  except  that  it  lacks  the 
premeditated  design  which  is  essential  to  the  first,  it  being 
the  intentional  unlawful  killing  with  malice,  but  without 
premeditation. 

§293.  Voluntary  manslaughter. — Manslaughter  is 
the  unlawful  killing  of  another  human  being  without 
malice,  and  is  either  voluntary  or  involuntary.  Voluntary 
manslaughter    is    where    the    act    causing    death    is    com- 


§  295]  CRIMINAL  OFFENSES  183  . 

mitted  in  the  heat  of  sudden  passion  caused  by  provoca- 
tion. There  must  be  a  purpose  to  kill  or  to  inllict  serious 
bodily  harm.  It  is  not  necessary  that  the  passion  should 
be  such  as  to  dethrone  the  reason,  but  it  must  be  suf- 
ficient in  degree  to  negative  the  idea  of  malice  in  the 
slayer.  Whether  in  the  particular  case  the  provocation 
v^as  adequate,  or  the  passion  excited  sufficient  to  rebut 
the  idea  of  malice,  is  for  the  jury  to  determine.  The 
provocation  may  consist  of  abusive  language,  or  an  un- 
lawful assault.  And  where  two  engage  in  a  combat  with 
or  without  weapons  and  one  is  killed,  it  is  voluntary  man- 
slaughter, unless  the  combat  was  sought  by  one  merely 
as  a  pretext  for  killing  the  other. 

§  294.  Involuntary  manslaughter.  —  Involuntary 
manslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice,  and  without  intent  to  kill  or  to  inflict  the 
injury  causing  death,  committed  accidentally  in  doing  an 
unlawful  but  not  felonious  act,  or  in  the  improper  or 
negligent  doing  of  a  lawful  act.  The  following  are 
instances  of  involuntary  manslaughter  when  death  results: 

The  reckless  handling  and  discharge  of  firearms,  gross 
carelessness  on  the  part  of  a  locomotive  engineer  or  the 
master  of  a  vessel,  the  grossly  negligent  use  of  defective 
material  in  building  a  house,  reckless  riding  of  a  horse 
or  driving  a  vehicle,  cruel  and  immoderate  punishment  of 
a  child  or  pupil. 

§  295.  Justifiable  homicide. — Homicide  is  justifi- 
able where  life  is  taken  by  the  proper  officer  in  pursuance 
of  the  lawful  sentence  of  a  court  adjudging  the  execution 
of  a  convict;  where  the  killing  is  in  the  necessary  self- 
defense  of  the  person  of  the  slayer,  or  of  a  husband  or 
wife,  parent  or  child,  master  or  servant,  or  a  man's 
habitation;  where  it  is  necessary   for  the  preservation  of 


184  Eleme;ntary  law  [§  296 

the  peace,  or  to  arrest  or  prevent  the  escape  of  a  felon, 
or  to  prevent  the  commission  of  a  felony.  So  also  is  the 
slaying  of  enemies  in  time  of  war,  or  the  execution  of 
persons  guilty  of  certain  breaches  of  the  rules  of  military 
law.  In  the  case  of  an  overloaded  boat,  where  the  sailors 
threw  some  passengers  overboard  to  lighten  the  vessel,  the 
court  held  that  they  were  guilty  of  manslaughter,  and 
that  in  such  an  extremity  the  victims  should  have  been 
selected  by  lot. 

To  justify  homicide  on  the  ground  of  self-defense 
the  accused  must  show  that  he  was  in  apparent  danger 
of  losing  his  own  life,  or  of  suffering  grievous  bodily 
harm  at  the  hands  of  his  assailant.  It  may  turn  out 
that  the  danger  was  not  real,  but  if  the  conduct  of  the 
assailant  was  such  as  to  create  in  the  mind  of  the  person 
assaulted  a  reasonable'  apprehension  of  danger  at  the  time, 
it  is  sufficient.  The  same  rule  applies  where  the  plea  is 
urged  by  one  who  takes  life  in  the  defense  of  those  to  whom 
he  owes  the  duty  of  protection. 

§  296.  Malice. — Malice  and  the  intent  to  kill  are 
essential  ingredients  of  murder,  but  this  malice  does  not 
necessarily  involve  the  notion  of  ill  will  toward  the  per- 
son slain.  Where  by  one's  conduct  one  is  shown  to  be 
depraved  in  mind,  devoid  of  social  duty  and  fatally  bent 
on  mischief,  malice  is  sufficiently  proved.  Proof  of  a 
formed  purpose  to  take  the  life  of  the  victim  is  sufficient 
to  establish  the  existence  of  what  is  called  malice  afore- 
thought, and  it  is  enough  if  the  intent  to  kill  exists  at 
the  moment  of  killing,  if  it  is  deliberate.  The  jury  may 
infer  malice  from  the  act  and  manner  of  killing  where 
it  is  unlawful,  and  it  is  for  them  to  determine  from  all 
the  circumstances  whether  malice  in  fact  existed. 

§  297.     Libel. — Libel  is  made  criminal  by  the  laws 


§  300]  CRIMINAL  OFFENSES  185 

of  some  states,  and  it  may  be  defined  to  be  the  wilful  and 
malicious  publication  of  any  false  and  scandalous  mat- 
ter tending  to  injure  the  reputation  of  another,  or  to  hold 
him  up  to  public  ridicule  and  contempt.  In  most  states 
the  injured  person  is  left  to  his  remedy  at  law  by  means 
of  a  civil  action  for  damages. 

§  298.     Malicious   trespass   or   malicious   mischief. — 

The  offense  is  ordinarily  limited  to  injuries  to  property, 
as  the  maiming  of  cattle  or  other  beasts,  girdling  trees, 
disfiguring  houses.  Malice  is  an  essential  ingredient  of 
the  offense;  but  where  the  injury  is  wilful,  malice  will  be 
presumed.  It  is  essential  that  damage  shall  have  resulted 
to  the  property. 

§  299.  Mayhem. — Mayhem  at  common  law  was 
the  act  of  unlawfully  and  violently  depriving  another  of 
the  use  of  some  member  of  his  body  whereby  he  was 
rendered  less  able  to  fight.  A  mere  disfiguring,  such  as 
cutting  off  an  ear  or  a  nose,  was  not  mayhem  at  com- 
mon -law.  By  statutes  in  England  and  America,  the 
definition  has  been  extended  so  as  to  include  all  malicious 
injuries  which  disable  or  disfigure  the  injured  person.  It 
must  be  intentional,  and  an  injury  resulting  from  a  ran- 
dom blow  or  thrust  during  a  fight  will  not  constitute 
mayhem,  although  it  may  result  in  maiming  or  disfigur- 
ing the  injured  party.  There  must  be  the  specific  intent 
to  do  the  act  which  results  in  the  crippling  or  disfiguring. 

§  300.  Nuisance. — Nuisance  is  a  common-law  of- 
fense and  consists  in  the  unlawful  doing  of  an  act,  or 
permitting  a  condition  of  things  to  exist  which  is 
prejudicial  to  the  health,  comfort,  safety,  property,  sense 
of  decency  or  morals  of  the  citizens  at  large,  and  it  may 
be   an   act    unauthorized    by    law,    or    from    neglect   of   a 


186  ELEMENTARY   LAW  [§  301 

duty  imposed  by  law.  To  carry  on  an  offensive  trade 
in  a  populous  community;  to  keep  a  pig  sty  in  a  city; 
to  allow  a  stable  in  a  city  to  become  filthy;  to  disturb 
the  public  rest  by  useless  and  unlawful  noise;  to  pollute 
streams  or  lakes  which  supply  drinking  water  to  the  pub- 
lic ;  to  keep  a  disorderly  house,  and  other  such  acts, 
constitute  the  offense. 

§  301.  Perjury. — The  crime  of  perjury  as  described 
in  the  common  law  is  committed  where  a  lawful  oath 
is  administered  in  some  judicial  proceedings  or  due 
course  of  justice  to  a  person  who  swears  wilfully  and 
absolutely  and  falsely  in  a  matter  material  to  the  issue 
or  point  in  question.  By  various  statutes  the  offense  is 
extended  to  false  swearing  in  matters  not  connected  with 
judicial  proceedings.  The  crime  may  be  committed  by  a 
witness  on  oral  examination,  in  the  course  of  a  trial,  or 
by  a  deposition  taken  before  an  officer  duly  authorized  to 
take  it,  or  by  an  oath  to  an  affidavit  to  be  used  at  any 
stage  of  the  judicial  proceedings  to  which  it  relates.  The 
form  of  an  oath  is  immaterial,  if  it  be  administered 
in  such  a  way  as  to  bind  the  conscience  of  him  who  takes 
it  and  to  accord  with  his  religious  belief. 

An  affirmation  taken  by  one  who  has  conscientious 
scruples  as  to  the  taking  of  an  oath  is  the  same  as  an 
oath,  and  one  who  falsely  affirms  is  as  much  a  perjurer 
as  if  he  falsely  swears.  The  false  statement  must  be  of 
a  matter  material  to  the  sul)jcct  under  consideration.  A 
guilty  intent  is  necessary  to  perjury,  Init  a  reckless  state- 
ment under  oath  of  the  existence  of  a  fact  of  which  the 
person  taking  the  oath  had  no  knowledge  has  been  said 
to  be  perjury,  although  tlie  statement  sworn  to  may  be 
true. 

§  302.     Piracy. — Piracy     is     robljery     on     the     high 


§  304]  CRIMINAL,  OFFENSES  187 

seas,  being  a  forcible  depredation  on  the  high  seas  with- 
out lawful  authority  and  done  in  the  spirit  and  intention 
of  universal  hostility.  Indictments  and  trials  for  piracy 
are  within  the  exclusive  jurisdiction  of  the  federal  courts, 
and  it  is  the  exclusive  province  of  congress  to  say  what 
acts  constitute  piracy. 

§  303.  Riot. — Riot  is  a  tumultuous  disturbance  of 
the  peace  by  three  or  more  persons  assembling  together  on 
their  own  authority  with  an  intent,  mutually,  to  assist  one 
another  against  any  one  who  shall  oppose  them,  in  the 
execution  of  some  enterprise  of  a  private  nature,  and 
afterwards  actually  executing  the  same  in  a  violent  and 
turbulent  manner,  to  the  terror  of  the  people,  whether  the 
act  accomplished  was  of  itself  lawful  or  unlawful.  The 
act  is  not  criminal  because  it  is  unlawful,  but  on  account 
of  the  violent  and  turbulent  manner  of  doing  it.  There 
must  be  three  or  more  guilty  parties,  and  if  three  only 
are  charged  and  two  are  acquitted,  the  third  can  not 
be  held  guilty.  An  agreement  to  participate  in  the 
enterprise  may  be  implied  from  the  circumstances  and 
conduct  of  the  parties. 

§  304.  Treason  and  misprision  of  treason. — Trea- 
son against  the  United  States  exists  where  a  person 
owing  allegiance  levies  war  against  them,  or  adheres  to 
their  enemies,  giving  them  aid  and  comfort.  The  differ- 
ent states  define  treason  in  substantially  the  same  way. 
Under  the  federal  constitution  no  person  can  be  con- 
victed  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open 
court.  If  a  body  of  men  be  actually  assembled  for  the 
purpose  of  effecting  by  force  a  treasonable  design,  all 
those  who  perform  any  part,  however  minute  or  how- 
ever   remote    from    the    scene    of    action,    and    who    are 


188  ELEMENTARY    LAW  [§  304 

actually  leagued  in  the  general  conspiracy,  are  to  be  con- 
sidered traitors. 

It  is  the  duty  of  a  citizen  who  has  knowledge  of  the 
commission  of  treason  against  the  United  States  to  dis- 
close the  same  to  the  president  or  a  judge  of  the  United 
States,  or  to  the  governor  or  some  judge  or  justice  of 
a  state,  and  the  failure  to  make  such  disclosure  is  mis- 
prision of  treason. 


PART   I 


THE  LAW  OF  PROPERTY 

CHAPTER  XXII 
PROPERTY   IN   GENERAL 

Sec.  Sec. 

305.  The  law  of  property.  308.     Its  importance. 

306.  Basis  of  ownership.  309.     Kinds  of  property. 

307.  Origin    of   private    owner- 

ship. 

305.  The  law  of  property. — The  law  of  property 
is  that  branch  of  the  civil  law  which  is  concerned  with 
ownership  and  other  interests  in  property.  For  the  pur- 
pose of  furnishing  an  adequate  basis  of  adjusting  the 
inevitable  conflicts  over  property  rights  and  providing  a 
definite,  uniform  system  for  such  effective  dealings  in 
property  interests  as  modern  commercial  life  requires,  the 
state  has  formulated  an  elaborate  and  technical  set  of 
legal  rules.  There  is,  perhaps,  no  field  of  law  where 
more  emphasis  is  placed  upon  technical  formalities.  The 
law  frequently  prescribes  detailed,  formal  requisites  for 
certain  instruments.  One  of  the  reasons  for  this  is  found 
in  the  fact  that  certain  rights  of  property,  as  titles  to 
land,  for  instance,  are  established  by  proving  an  un- 
broken chain  of  title.  For  purposes  of  convenience,  this 
requires  that  where  possible  all  transactions  affecting  land 
titles  should  be  evidenced  in  a  certain,  definite  and  author- 
ized manner.  This  furthermore  explains  why  much  of 
our    law    on    this    subject    is    so    strongly    influenced    by 

189 


190  ELEMENTARY    LAW  [§  306 

historical  considerations.  In  England,  whence  came  our 
common  law,  titles  are  traced  back  several  centuries  to 
the  feudal  system,  and  necessarily  this  is  reflected  in  the 
body  of  our  law. 

No  greater  source  of  useless  litigation  and  domestic 
irritation  could  be  found  than  a  legal  system  where  prop- 
erty rights  were  indefinite  and  uncertain.  To  guard 
against  this  evil  and  at  the  same  time  facilitate  the  ease 
and  freedom  of  property  transactions  is  one  of  the  main 
purposes  of  this  branch  of  the  law. 

§  305.  Basis  of  ownership. — In  speaking  of  the 
Roman  laws  the  German  jurist  Savigny  sa3^s  that  "all 
property  is  founded  on  adverse  possession  ripened  by 
prescription."  Sir  Henry  Maine  gives  it  as  his  opinion 
that  the  "true  basis  of  the  right  of  property  is  not  an 
instinctive  bias  towards  the  institution  of  property,  but  a 
presumption  arising  out  of  the  long  continuance  of  that 
institution  that  everything  ought  to  have  an  owner. 
Where  possession  is  taken  of  an  object  which  is  not  or 
has  never  been  reduced  to  dominion,  the  possessor  is 
permitted  to  become  proprietor  from  a  feeling  that  all 
valuable  things  are  naturally  the  subjects  of  exclusive 
enjoyment,  and  that  in  tlie  given  case  there  is  no  one  to 
invest  with  the  right  of  property  except  the  occupant. 
The  occupant,  in  short,  becomes  the  owner,  because  all 
things  are  persumed  to  be  somebody's  property  and 
because  no  one  can  be  pointed  out  as  having  a  better 
right  than  he  to  the  proprietorship  of  this  particular 
thing."  The  individual  right  of  property,  as  appears 
from  a  closer  study  of  ancient  law,  seems  to  be  a  com- 
paratively modern  conception.  Ancient  law  knows  next 
to  nothing  of  individuals;  it  is  concerned  not  with  indi- 
viduals, but  with  families ;  not  with  single  human  beings, 


§  308]  PROPERTY    IN    GENERAL  191 

but   groups.     It   is   more    likely   that   joint   ownership    and 
not  separate  ownership  prevailed  in  primitive  societies. 

§  307.  Origin  of  private  ownership. — Out  of  this 
community  ownership,  in  which  the  rights  of  all  the 
individuals  were  blended,  there  grew  the  idea  of  private 
property.  So  long  as  the  family  or  tribe  or  community 
held  property  in  common  the  right  of  individual  or 
private  ownership  was  practically  ignored,  if,  indeed,  it 
existed  at  all.  This  right  grew  and  strengthened  as  the 
family,  tribe  or  community  disintegrated  under  the 
ameliorating  influences  of  advancing  civilization,  and  as 
the  individual  escaped  from  the  tyranny  of  the  head  of 
the  family  or  the  chief  of  the  tribe. 

§  308.  Its  importance. — The  power  or  assertion  of 
exclusive  ownership  is  manifested  by  boundaries,  fences, 
walls  encircling  land,  and  the  actual  possession  and  con- 
trol of  personal  property.  This  dominion  of  the  individ- 
ual over  his  property  is  permitted  and  defended  by  the 
state  as  a  pure  matter  of  convention  and  policy.  In  a 
savage  state  it  is  not  essential,  except  as  to  things  of 
little  value,  but  in  a  civilized  society  it  is  the  basis  of 
property,  and  without  it  progress  would  seem  to  be  im- 
possible. Land  being  indestructible  in  character,  limited 
in  extent  and  incapable  of  increase,  can  not  be  regarded 
as  a  true  subject  of  permanent  individual  appropriation. 
And  however  important  it  is  that  the  tenure  of  the  culti- 
vation of  the  soil  should  be  secure,  the  paramount 
dominion  of  the  state  over  every  part  of  its  territory  is 
a  fact  which  in  a  high  condition  of  social  progress  can 
not  be  emphasized  too  strongly  or  made  to  be  felt  too 
universally  and  really.  By  enactments  prohibiting  the 
entailment  of  estates  in  land  by  abolishing  primogeniture, 
by  succession   taxes,   and   other  devices   in   case   of  need. 


192  ELEMENTARY    LAW  [§  309 

the  states  of  the  Union  have  it  in  their  power  to  prevent 
the  hurtful  monopohzation  of  land. 

To  protect  this  right  of  property,  whatever  may  be 
its  origin  or  extent,  the  law  has  provided  numerous 
methods  to  prevent  the  invasion  of  the  right,  and  to 
redress  wrongs  by  which  it  is  violated.  The  laws  for 
redressing  injuries  to  the  rights  to  life  and  personal 
security  are  comparatively  few — the  laws  for  the  pro- 
tection of  the  right  of  property  are,  as  we  shall  see, 
numerous. 

§  309.  Kinds  of  property. — There  are  two  kinds 
of  property  which  are  the  subject  of  individual  owner- 
ship— real  and  personal,  and  these  are  subdivided  into 
corporeal  and  incorporeal.  There  can  be  no  individual 
or  exclusive  ownership  of  any  object  which  can  not  be 
exclusively  possessed  or  enjoyed;  so  that  the  elements  of 
light,  air  and  water,  which  a  man  may  occupy  and  use  by 
means  of  his  windows,  his  gardens,  his  walls  and  other 
conveniences  are  his  so  long  as  they  remain  in  his 
possession,  but  if  he  ceases  to  possess  them  or  voluntarily 
abandons  them,  they  return  to  the  common  stock,  and 
the  next  taker  has  an  equal  right  to  seize  and  enjoy  them. 
This  principle  applies  to  animals  fer?e  naturae,  surface  and 
subterranean  streams  of  water,  and  veins  or  reservoirs 
of  oil  or  gas  beneath  the  soil.  The  doctrine  of  ancient 
rights  which  once  prevailed  in  England,  that  is,  the  right 
that  the  first  builder  upon  ground  had  to  prevent  the 
owner  of  the  adjoining  ground  from  erecting  a  structure 
that  would  shut  out  the  light  or  air  from  the  first 
builder's  house  has  been  abandoned  in  this  country.  The 
owner  of  the  soil  has  the  right,  in  the  absence  of  boundary 
agreements  to  the  contrary,  to  dig  as  deep  and  to  build  as 
high  as  he  sees  fit,  so  long  as  he  conforms  to  the  lines  of 


§  309]  PROPERTY  IN  ge;ne;raIv  193 

his  own  boundaries,  and  does  not  undermine  or  injure 
the  land  or  buildings  of  his  neighbor. 

Real  property  consists  of  land  and  structures  perma- 
nently affixed  to  land. 

Personal  property  consists  of  such  things  as  are  mov- 
able and  may  attend  the  person  of  the  owner  wherever 
he  may  go,  as  goods,  money,  jewels,  chattels  and  the 
like. 

Corporeal  property  consists  of  such  material  things 
as  may  be  apprehended  by  the  senses,  as  lands,  goods, 
animals,  and  may  be  the  subject  of  actual  manual  posses- 
sion and  capable  of  being  transferred  by  delivery. 

Incorporeal  property  is  that  which  consists  in  legal 
right  merely,  as  choses  in  action,  rights  of  way,  ease- 
ments and  the  like.  It  is  a  legal  right  which  one  man 
has,  not  to  the  property  of  another,  but  in  it;  as  in  the 
case  of  a  right  of  way,  the  land  is  owned  and  in  posses- 
sion of  one  as  corporeal  property,  while  another  has  the 
single  right  of  passing  over  it,  which  is  incorporeal  prop- 
erty. Both  are  valuable  property  rights  and  the  owners 
of  them  respectively  will  be  protected  in  their  enjoyment 
by  the  courts.  Incorporeal  property  may  be  acquired  by 
agreement,  or  it  may  be  created  by  operation  of  law,  as 
when  one  sells  a  parcel  of  land  in  the  center  of  his  own 
field,  the  buyer  by  operation  of  law  acquires  a  right  of 
way  over  the  seller's  other  land  which  surrounds  his. 


13 — Elem.  Law. 


CHAPTER  XXIII 

REAL   PROPERTY 


Sec. 

Sec. 

310. 

Real  property. 

316. 

Islands. 

311. 

Titles       in       the       United 

317. 

Fixtures. 

States. 

318. 

Boundaries. 

312. 

Land   acquired    by   treaty. 

319. 

Land    bounded 

by    high 

313. 

Indian  titles. 

ways. 

314. 

Definitions. 

320. 

Appurtenances. 

315. 

Lands    bounded    by 
streams. 

§  310.  Real  property. — The  law  of  real  property, 
as  it  exists  today  in  the  United  States,  is  full  of  intricacy. 
The  commercial  spirit  of  modern  times  has  broken  down 
many  of  the  artificial  barriers  which  the  feudal  system 
and  the  English  laws  of  descent  and  tenures  interposed 
to  prevent  the  quick  and  easy  transfer  of  landed  estates. 
But  enough  of  the  old  rules  survive  to  confuse  and  per- 
plex the  student,  and  to  tax  the  experienced  lawyer,  when 
he  is  called  upon  to  decide  concerning  the  rights  of 
claimants  to  land.  It  is  only  intended  here  to  give  in 
outline  some  historical  facts  and  general  rules  showing 
how  and  from  what  source  titles  to  land  are  derived, 
and  how  they  are  transferred  from  one  person  to  another. 

§311.  Titles  in  the  United  States.— It  is  a  funda- 
mental principle  in  the  English  law  that  the  sovereign 
was  the  original  proprietor  of  all  the  land  in  the  kingdom. 
The  same  principle  holds  good  in  the  United  States  as  to 
all  lands  which  are  known  as  public  lands.  By  the  terms 
of  their  charters,  the  original  colonies  which  became  states 
reserved  the  right  when  the  Union  was   formed  to  hold 

194 


§  313 J  REAL   PROPERTY  195 

and  dispose  of  the  land  within  the  boundaries  o£  their 
respective  grants  independently  of  the  nation.  Virginia, 
by  cession  of  parts  of  her  territory  to  the  United  States, 
abandoned  her  original  claim,  reserving  to  herself,  how- 
ever, certain  portions  now  in  the  states  of  Kentucky  and 
Ohio,  which  she  bestowed  upon  her  soldiers  who  served 
in  the  Revolutionary  War.  Titles  to  lands  lying  within 
the  territories  acquired  by  purchase  and  annexation  since 
the  formation  of  the  Union,  such  as  Florida,  Louisiana, 
Texas,  California,  New  Mexico,  Arizona,  Colorado,  are 
held  and  derived  from  two  sources. 

§312.  Land  acquired  by  treaty. — In  acquiring 
these  territories,  so  far  as  they  were  acquired  by  treaties 
and  annexation,  the  United  States  agreed  that  titles  held 
by  grant  from  Spain,  France  and  Mexico  should  be 
respected  and  treated  as  valid.  Lands  not  granted  at  the 
date  of  the  treaties  became  part  of  the  public  lands, 
and  titles  to  such  lands  are  derived  from  the  United 
States. 

§  313.  Indian  titles. — In  the  fifteenth  and  sixteenth 
centuries,  when  navigators  from  Europe  made  their 
discoveries  upon  the  American  continent,  Spain,  France, 
Holland  and  England  tacitly  agreed  that  discovery  and 
occupancy  gave  title  to  tlie  first  comer,  not  only  against 
other  European  nations,  but  against  the  native  Indians. 
The  absolute  title  of  the  Indians  "yielded  to  the  military, 
intellectual  and  moral  power  of  the  European  immi- 
grants." The  Indians  were  allowed  to  occupy,  but  not  to 
dispose  of  the  land,  except  to  the  government  within 
whose  boundaries  they  lived.  This  rule  grew  out  of  the 
necessities  of  the  case.  To  have  allowed  the  Indian 
tribes  to  make  transfers  of  land  to  other  nations  would 
have  been  a  mischievous  source  of  controversy  and  war. 


196  ELEMENTARY    LAW  [§^14 

The  policy  of  our  government  has  been  to  treat  the 
Indians  as  wards.  Whether  our  duty  as  guardian  has 
been  discharged  with  a  due  regard  to  the  rights  of 
our  wards  is  a  matter  upon  which  opinions  differ.  Little 
by  little,  however,  the  Indian  titles  have  been  extinguished, 
and  the  Indians  themselves  have  been  confined  to  certain 
reservations,  until  now  the  lands  they  are  permitted  to 
occupy  are  a  "mere  patch"  when  compared  to  the  immense 
domain  which  they  used  or  possessed  when  the  Europeans 
discovered  the  continent. 

§314.  Definitions. — Having  considered  the  begin- 
ning or  foundation  of  the  titles  to  land  in  this  country, 
we  come  now^  to  speak  of  the  interests  which  individuals 
may  own  in  land.  Things  real  consist  of  land,  tenements 
and  hereditaments.  The  term  "land"  comprehends  any 
ground,  soil  or  earth.  It  also  includes  all  buildings 
erected  upon  it,  though  cases  may  arise  where  by  agree- 
ment of  parties,  or  by  the  nature  of  the  structure  and 
the  intention  with  which  it  was  placed  upon  the  land,  it 
may  have  and  retain  the  character  of  personal  property. 
Under  the  term  "land"  is  included  the  water  which  cov- 
ers the  land,  so  that  we  do  not  speak  of  so  many  acres  of 
water,  but  of  so  many  acres  of  "land  covered  by  water," 
which  was  the  phrase  used  in  pleading  and  conveyances, 
but  now  the  term  land  will  cover  and  include  all  water, 
whether  of  lake  or  stream,  within  its  bounds.  Tenement, 
in  its  original,  proper  and  legal  sense,  signifies  everything 
that  may  be  holden,  provided  it  be  of  a  permanent  nature; 
whether  it  be  of  a  substantial  and  sensible  or  of  an 
unsubstantial,  ideal  kind.  But  an  hereditament,  says  Sir 
Edward  Coke,  is  by  much  the  largest  and  most  com- 
prehensive expression;  for  it  includes  not  only  lands  and 
tenements,  but  whatever  may  be  inherited,  be  it  corporeal 
or  incorporeal,  real  or  personal.     Hereditaments  are  of 


§  315]  REAL   PROPERTY  197 

two  kinds:  corporeal,  or  such  as  affect  the  senses,  such 
as  may  be  seen  and  handled  by  the  body;  incorporeal, 
or  those  which  are  not  the  objects  of  sensation,  can 
neither  be  seen  nor  handled,  are  creatures  of  the  mind, 
and  exist  only  in  contemplation. 

§315.  Lands  bounded  by  streams. — The  grant  of  a 
stream  of  water  by  that  name  will  not  pass  the  land  over 
which  it  runs,  but  the  grant  of  a  parcel  of  land  passes 
the  property  in  the  stream  of  water  which  runs  over  it 
as  much  as  it  does  the  property  in  the  stones  at  the 
bottom  of  the  stream.  One  who  owns  land  on  both 
sides  of  a  stream  owns  the  whole  bed  of  the  stream. 
When  a  stream  bounds  the  lands  of  two,  each  owns  to 
the  thread  of  the  stream.  The  owner  of  land  over  which 
water  flows  has  the  right  to  use  the  water  without  diminu- 
tion or  obstruction,  except  so  far  as  the  reasonable  use 
of  the  same  by  other  riparian  owners  may  affect  it. 
Strictly  speaking,  he  has  no  property  in  the  water  itself, 
but  a  simple  use  of  it  while  it  passes  along.  No  proprie- 
tor of  land  bounded  by  a  water-course  has  a  right  to  use 
the  stream  to  the  prejudice  of  another  proprietor.  He 
may  not  dam  it  so  that  it  overflows  the  lands  of  those 
above  him,  except  ( 1 )  where  he  gets  their  permission,  or 
(2)  where  for  certain  public  uses  the  statute  authorizes 
him  to  do  so  upon  compensating  the  owners  for  the 
injury.  Ke  may  not  foul  the  stream  by  carrying  on  a 
noxious  trade  which  poisons  the  water  or  makes  it  unfit 
for  use. 

Where  land  is  described  as  bounded  by  a  non- 
navigable  lake,  pond  or  stream,  the  general  rule  is  that 
the  boundary  is  the  center  or  thread.  This  rule  does  not 
hold  where  there  is  anything  in  the  grant  to  indicate  a 
different  intention.  Where  land  abuts  on  the  sea  or  its 
estuaries,  or  upon  rivers  in  which  the  tide  ebbs  and  flows 


198  ELEMENTARY    LAW  [§316 

— only  these  being  navigable  at  common  law — the  boun- 
dary is  at  high-water  mark.  In  America  there  is  some 
conflict  as  to  what  rule  shall  be  apphed  to  fresh-water 
lakes  and  the  large  rivers,  which  are  navigable  in  fact 
but  not  at  common  law.  As  to  these  the  weight  of 
authority  places  the  boundary  at  low-water  mark.  Where 
a  nonnavigable  stream  gradually  changes  its  course,  the 
boundaries  follow  the  change  in  the  waters;  but  if  the 
change  be  abrupt,  the  ownership  remains  according  to  the 
former  bounds. 

A  proprietor  of  an  island  in  a  water-course  owns  to 
the  thread  of  each  branch  of  the  stream,  which  in  its 
natural  course  divides  it  from  the  main  land.  And  where 
a  water-course  is  thus  divided  by  an  island,  and  the 
smaller  portion  descends  on  one  side,  the  proprietor  by 
whose  land  such  smaller  quantity  flows  is  entitled  to  no 
more  water  than  naturally  runs  between  his  bank  and 
the  island. 

§  316.  Islands. — Where  islands  are  formed  in  the 
sea  or  a  navigable  river,  they  belong  to  the  sovereign; 
in  rivers  not  navigable  and  above  where  the  tide  ebbs  and 
flows,  they  belong  to  the  owners  of  the  adjoining  land. 
If  there  be  an  island  exactly  in  the  middle  of  the  stream, 
it  is  equally  divided  between  the  two  proprietors.  But 
if  one  portion  approaches  nearer  to  one  side  of  a  stream 
than  it  does  to  the  other,  the  greater  part  belongs  to  the 
owner  of  the  nearer  estate,  according  to  its  approxima- 
tion thereto.  When  a  river  is  the  boundary  line  between 
two  nations  or  states,  if  the  original  property  be  in  neither 
and  there  be  no  agreement  about  it,  each  holds  to  the 
middle  of  the  stream.  But  where  one  state  is  the  original 
proprietor,  and  grants  the  territory  on  one  side,  as  in  the 
cession  by  Virginia  of  the  territory  northwest  of  the 
Ohio    river,    it    retains   the    river   within    its    domain   and 


§  317]  REAL,   PROPERTY  199 

the   boundary   of  the   lands   ceded   extends   only   to   low- 
water  mark. 

§317.  Fixtures. — There  is  much  controversy  as  to 
what  is  a  proper  definition  of  a  fixture.  A  fixture  is 
something  annexed  to  land,  as  buildings,  machinery  or 
the  like.  Sometimes  the  manner  and  purpose  of  the 
annexation  makes  it  a  part  of  the  realty,  sometimes  though 
annexed  in  a  permanent  manner  it  retains  its  character 
of  personalty.  The  chattel  must  not  only  be  laid  upon 
the  land,  it  must  be  annexed,  set  into,  or  fastened  upon 
it,  to  become  a  part  of  the  realty.  Nor  will  every  such 
annexing  make  it  part  of  the  realty.  If  a  tenant  puts  a 
building  or  machinery  upon  land  with  the  express  agree- 
ment with  the  landlord  that  at  the  end  of  the  term  it 
may  be  removed,  it  does  not  become  a  part  of  the  realty, 
unless  during  or  at  the  end  of  the  term  he  fails  to  remove 
it.  But  where  the  duration  of  the  tenancy  is  uncertain, 
the  law  allows  the  tenant  a  reasonable  time  for  removal 
of  fiixtures  after  the  end  of  the  tenancy.  The  general  rule 
is  that  in  the  absence  of  a  valid  agreement  to  the  contrary, 
fixtures  once  annexed  become  part  of  the  land,  so  that 
conveyances,  mortgages  or  other  liens  upon  the  land  cover 
them.  When  the  tenant  puts  up  trade  fixtures  to  be 
used  in  connection  with  his  particular  business,  it  has  been 
held  to  be  such  a  declaration  of  intention  as  to  prevent 
their  becoming  part  of  the  land.  The  old  rules  have  been 
relaxed,  so  that  it  may  be  said  that  as  between  landlord 
and  tenant,  the  latter  may  remove  all  such  fixtures  of 
a  chattel  nature  as  he  himself  has  erected  on  the  premises 
for  ornament,  domestic  convenience,  or  to  carry  on  trade, 
provided  that  such  removal  may  be  made  without  material 
injury  to  the  freehold.  The  rule  is  modified  sometimes 
by  the  usages  and  customs  of  particular  localities  or 
trades. 


200  e;le;me;ntary  law  [§  318 

As  between  vendor  and  vendee,  the  rule  is  that  all 
fixtures  attached  to  the  land  by  the  vendor,  and  on  the 
land  at  the  time  of  the  sale,  pass  to  the  vendee,  unless 
they  are  expressly  reserved  by  the  terms  of  the  contract 
of  sale. 

As  between  heir,  devisee  and  executor,  the  rule  is 
that  fixtures  annexed  to  the  land  by  the  testator  go  to 
the  heir  or  devisee,  and  the  executor  has  no  right  to  them, 
unless  the  intent  of  the  testator  to  have  them  treated  as 
personalty  has  been  plainly  expressed.  In  an  early  case  in 
Ohio  the  following  were  enumerated  as  the  requisites  of 
a  fixture :  ( 1 )  That  it  be  actually  annexed  to  the  realty, 
or  something  appurtenant  thereto.  (2)  That  it  be  appro- 
priate to  the  use  or  purpose  of  that  part  of  the  realty 
with  which  it  is  connected.  (3)  That  it  be  intended  by 
the  party  making  the  annexation  to  be  a  permanent  acces- 
sion to  the  freehold.  What  the  intention  was  in  making 
the  annexation  is  inferred  from  the  following  facts :  the 
nature  of  the  article  annexed ;  the  relation  of  the  party 
making  the  annexation,  whether  owner,  tenant,  etc. ;  the 
structure  and  mode  of  annexation;  the  purpose  or  use  for 
which  the  annexation  has  been  made. 

§  318.  Boundaries. — Land  has  an  indefinite  extent, 
upwards  and  downwards.  No  man  has  a  right  to  erect 
a  structure,  any  part  of  which  overhangs  the  land  of 
another.  If  a  tree  planted  on  one  man's  land  extends  its 
branches  over  the  adjoining  premises,  to  the  injury  of 
another,  the  owner  is  responsible  for  the  damages  caused 
thereby,  and  the  injured  party  may  remove  so  much  of 
it  as  overhangs  his  premises.  A  grant  of  land  carries 
everything  on  it  or  beneath  it, .  whether  it  be  woods, 
houses,  waters  or  metals — in  a  word,  it  carries  every- 
thing terrestrial. 

Boundary    lines    may   be    fixed    by    agreement.      They 


§  320]  re:ai,  property  201 

may  be  established  by  prescription.  They  may  be  settled 
by  the  conduct  of  the  parties  amounting  to  an  estoppel. 
In  the  absence  of  these  the  law  fixes  boundary  limits  as 
a  matter  of  policy,  and  in  the  interest  of  peace.  A  grant 
of  land  bounded  by  a  navigable  river,  where  the  tide 
ebbs  and  flows,  extends  only  to  the  high-water  mark,  but 
it  has  been  held  that,  subject  to  government  supervision 
and  control,  tlie  owner  of  adjacent  lands  has  the  right 
to  erect  wharves  and  piers  extending  to  low-water  mark. 

§  319.  Land  bounded  by  highways. — Where  a  pub- 
lic road  is  the  boundary  line,  the  owners  of  land  at  each 
side  own  to  the  center  of  the  road,  and  they  have  the 
exclusive  right  to  the  soil,  subject  to  the  right  of  pas- 
sage by  the  public,  and  may  use  it  in  any  way  which 
does  not  impair  the  public  right.  This  rule  as  to  owner- 
ship to  the  center  of  the  road  will  always  prevail  unless 
there  is  an  express  abandonment  of  the  right  by  the 
owners.  If,  under  the  power  of  eminent  domain,  the 
highway  is  appropriated  in  whole  or  in  part  for  any  other 
public  use,  the  adjacent  landowners  are  entitled  to  com- 
pensation for  such  increased  burden. 

§  320.  Appurtenances. — In  grants  of  land,  the 
phrase,  "and  all  appurtenances,"  is  commonly  used.  An 
appurtenance  is  a  thing  belonging  to  another  thing  and 
which  passes  as  incident  to  the  principal  thing.  It  is 
inferior  to  the  thing  granted,  but  of  the  same  nature. 
Land  can  not  be  appurtenant  to  land,  and  a  conveyance 
of  land  bounded  by  the  line  of  an  adjoining  highway 
will  pass  no  title  to  the  soil  over  which  the  highway 
passes,  but  the  grant  will  give  the  grantee  a  perpetual 
right  of  way  as  an  appurtenance.  As  a  general  rule, 
a  grant  of  land  carries  with  it  as  appurtenances  all 
apparent   benefits   and   easements   that   are   incident   to   it 


202  KLEMENTARY    LAW  [§  320 

and  necessary  to  its  beneficial  enjoyment,  and  which  the 
grantor  had  full  power  to  convey;  and  they  pass,  whether 
acquired  by  grant  or  prescription,  or  originally  incident 
to  the  estate.  A  grant  of  a  mill  with  appurtenances 
covers  the  head  of  water  by  which  it  runs,  also  all 
water-rights  and  privileges  used  with  and  incident  to  it. 
It  is  not  necessary  to  use  the  term,  "appurtenances,"  to 
convey  rights  that  actually  are  such,  for  they  pass  as 
incident  to  the  land,  whether  that  term  is  employed  or 
not. 


CHAPTER  XXIV 


INCORPOREAL  PROPERTY 


Sec. 

Sec. 

321. 

Kinds  of  incorporeal  prop- 

327. 

Temporary 

rights  of  way. 

erty. 

328. 

Easements. 

322. 

Advowsons. 

329. 

Offices  and 

dignities. 

323. 

Tithes. 

330. 

Franchises. 

324. 

The  right  of  common. 

331. 

Rents. 

325. 

Right  of  way. 

332. 

Liens. 

326. 

Private  rights  of  way. 

§321.  Kinds  of  incorporeal  property.  —  Judge 
Coaley  criticises  Blackstone's  definition  of  an  incorporeal 
hereditament  as  "a  right  issuing  out  of  a  thing  corporate 
(whether  real  or  personal)  or  concerning  or  annexed  to, 
or  exercisable  within  the  same,"  and  defines  it  as  "any 
intangible  right  which  is  capable  of  being  inherited, 
though  it  may  exist  wholly  independent  of  any  corporeal 
property  whatsoever." 

Blackstone  says  there  are  ten  sorts  of  incorporeal 
hereditaments :  advowsons,  tithes,  commons,  ways,  offices, 
dignities,  franchises,  corodies  or  pensions,  annuities  and 
rents. 


§  322.  Advowsons. — Advowson  is  the  right  of  pre- 
sentation to  a  church,  the  right  of  the  lord  of  a  manor 
to  designate  what  parson  shall  minister  to  the  parish  and 
enjoy  the  living  appurtenant  to  it.  This  subject  has  no 
place  in  American  law,  under  which  all  religious  societies 
are  purely  voluntary,  and  pastors  are  chosen  as  the  people 
see  fit,  or  as  the  usages  of  the  particular  ecclesiastical 
organizations  prescribe. 

203 


204  ELEMEINTARY   LAW  [§  323 

§  323.  Tithes. — Strictly  speaking,  tithes  are  a  tenth 
of  the  annual  increase  and  profits  of  lands  and  stock 
upon  lands  and  the  personal  industry  of  the  inhabitants. 
In  all  countries  where  there  are  religions  established  and 
maintained  by  public  law,  provision  is  made  for  the  sup- 
port of  the  clergy.  It  is  supposed  that  tithes  were  intro- 
duced in  England  in  the  sixth  century,  when  Augustine, 
the  monk,  planted  Christianity  among  the  Saxons.  The 
first  decree  enforcing  the  payment  of  tithes  was  made 
A.  D.  786.  At  first,  these  titlies  were  paid  to  the 
bishops,  who  allotted  them  among  the  clergy  of  their 
dioceses,  but  when  the  bounds  of  the  parishes  became 
definitely  fixed,  the  tithes  were  paid  directly  to  the  priests 
of  the  several  parishes.  Sometimes,  by  agreement  be- 
tween the  landowner  and  the  parson,  some  land  or  other 
recompense  was  given  in  lieu  and  satisfaction  of  tithes. 
And  sometimes  by  prescription  certain  lands  or  persons 
were  exempted  from  the  payment  of  tithes.  A  modus, 
as  it  is  called,  was  a  special  manner  of  tithing,  whereby 
the  general  law  was  altered  as  where  something  in  lieu 
of  the  tenth  part  of  the  annual  increase  was  paid  to  the 
parson.  To  make  a  modus  good,  it  must  be  certain  and 
invariable.  The  thing  paid  must  be  beneficial  to  the 
parson.  It  must  be  different  from  the  thing  compounded 
for.  It  must  be  as  durable  as  the  tithes  discharged  by  it. 
Although  interesting  as  a  historical  study  of  the  growth 
and  progress  of  the  law,  it  is  not  deemed  wise  or 
profitable  to  consider  more  fully  in  this  place  these  mat- 
ters which  do  not  enter  into  the  practical  administration 
of  the  law  in  this  country. 

§  324.  The  right  of  common. — ^This  is  defined  to 
be  a  profit  which  a  man  hath  in  the  land  of  another.  By 
the  English  law,  the  lords  of  manors  were  required  to 
allow  certain  of  the  manorial  lands  to  remain  unenclosed, 


§  325]  INCORPOREAI,    PROPERTY  205 

Upon  which  the  inhabitants  could  pasture  what  were 
called  commonable  beasts,  which  were  either  beasts  of  the 
plow,  or  such  as  manure  the  ground.  As  lands  became 
more  valuable,  the  lords  of  the  manors  began  to  enclose 
the  commons,  and  parliament  in  the  reign  of  George  III 
enacted  a  law  which  has  been  repeatedly  amended,  regu- 
lating the  inclosure  of  commons.  The  right  of  common 
in  the  United  States  is  a  narrow  right.  In  tide-waters 
the  right  of  taking  fish  is  common  to  all  citizens.  In 
rivers  where  the  tide  does  not  ebb  and  flow,  it  is  said  that 
the  proprietor  of  the  bank  has  an  exclusive  right  of 
fishery  to  the  thread  of  the  stream,  but  it  has  been  held 
that  in  large  navigable  rivers,  such  as  the  Susquehanna, 
the  public  at  large  have  a  common  right  of  fishery.  For 
the  taking  of  fish  where  the  public  have  the  right,  no 
person  can  lawfully  go  upon  the  land  of  another  without 
license.  In  ordinary  streams  within  the  boundaries  of 
a  man's  land,  or  where  the  stream  is  the  dividing  line 
between  two  proprietors,  no  one  has  a  right  to  fish  with- 
out the  license  of  the  riparian  proprietors. 

Kent  sums  up  the  American  doctrine  thus:  The 
right  of  fishing  in  navigable  or  tide  waters  below  high- 
water  mark  is  a  common  right.  In  streams  not  navigable, 
the  owners  of  adjacent  lands  have  the  exclusive  right 
of  fishing  each  on  his  own  side.  Such  right  is  held  sub- 
ject to  the  public  use  of  the  waters  as  a  highway  and 
to  the  free  passage  of  fish. 

§  325.  Right  of  way, — The  right  of  way  is  the 
right  of  going  over  another  man's  land.  Ways  are  either 
public  or  private.  A  public  way  may  be  established  either 
by  the  dedication  of  the  owner  of  the  land,  or  by  the 
appropriation  of  a  man's  land  for  the  purpose  in  proceed- 
ings at  law,  under  the  authority  of  the  state  by  virtue  of 
its  right  of  eminent  domain. 


206  ELEMENTARY    LAW  [§  325 

First  we  shall  discuss  the  manner  in  which  the  owner 
may  dedicate  his  land  as  a  public  way.  Dedication  is  the 
setting  apart  of  land  for  public  use.  It  is  essential  to 
every  valid  dedication  that  it  should  conclude  the  owner, 
and  that  as  against  the  public  it  should  be  accepted  by 
the  proper  local  authorities  or  by  general  public  user. 
There  are  two  kinds  of  dedication,  statutory  dedication 
and  common-law  dedication.  Where  the  statute  requires 
that  the  dedication  shall  be  evidenced  in  a  particular  way, 
as  by  plats  or  maps,  and  that  they  shall  be  acknowledged 
before  some  competent  officer,  these  requirements  must  be 
strictly  complied  with.  Unless  the  proper  local  authorities 
accept  the  dedication,  such  ways  can  not  properly  be 
called  public  highways,  in  the  sense  that  the  expense  of 
maintenance  can  be  cast  upon  the  public.  But  where 
lots  have  been  purchased,  according  to  plats  or  maps 
showing  certain  streets  and  alleys  upon  them,  these  alleys 
and  streets  will  be  kept  open  as  ways  for  the  benefit 
of  such  persons  as  have  made  such  purchases.  A  stat- 
utory dedication  is  by  way  of  grant,  a  common-law  dedi- 
cation arises  by  way  of  an  estoppel  in  pais.  No  writing 
is  necessary  to  a  common-law  dedication — no  formality. 
The  mere  throwing  open  the  land  to  the  use  of  the  public 
for  a  way  is  a  dedication  if  the  public  accepts  it.  It 
must  be  clear,  however,  that  the  landowner  intends  to 
give  the  right.  The  fact  that  the  owner  acquiesced  in 
the  use  of  the  way  by  the  public  for  twenty  years  is 
sufficient  evidence  of  intent.  If  the  public  are  in  the 
habit  of  using  such  a  way,  and  the  owner  does  not  wish 
to  dedicate  it,  he  can  by  unequivocal  acts  assert  his  right, 
as  by  putting  gates  or  fences  across  the  way  even  once 
in  a  year.  It  has  been  said  that  one  act  of  obstruction 
by  the  owner  is  better  evidence  of  intent  than  years  of 
acquiescence  in  the  use  by  the  public.  But  if  the  use  is 
continuous   and   uninterrupted    for  twenty   years  the  way 


§  327]  INCORPOREAL    PROPEIRTY  207 

is  established.  Dedication  may  arise  in  a  shorter  period 
than  twenty  years,  when  the  intent  to  dedicate  is  positive 
and  manifest,  and  the  question  of  intent  is  a  question  of 
fact  for  the  jury.  When  a  dedication  is  once  made  it 
can  not  be  revoked. 

§  326.  Private  rights  of  way. — Private  rights  of 
way  are  of  two  kinds :  those  which  are  purely  personal 
and  can  not  be  assigned,  and  those  which  are  appurtenant 
or  annexed  to  an  estate  and  pass  with  a  conveyance  of 
the  estate.  A  private  way  may  be  created  by  a  grant, 
or  it  may  arise  by  operation  of  law  or  necessity.  It 
arises  by  operation  of  law  or  necessity  where  one  sells 
a  parcel  of  land  which  is  surrounded  wholly  by  the  lands 
of  the  grantor  or  by  his  lands  and  the  lands  of  others. 
In  such  case,  the  vendee  has  the  right  of  way  over  the 
lands  of  the  vendor  to  the  public  highway.  The  right  to 
locate  the  way  rests  first  in  the  vendor.  If  he  fails  to 
locate  it  within  a  reasonable  time  in  a  convenient  manner, 
the  right  to  locate  it  is  in  the  vendee,  and  when  once 
located  it  must  be  adhered  to.  The  doctrine  of  dedication 
has  no  application  to  a  private  way,  though  that  right 
may  be  established  by  uninterrupted  user  for  twenty 
years.  To  make  good  a  private  way  by  prescription,  the 
use  must  be  definite  as  to  manner  and  location.  It  must  be 
under  a  claim  adverse  to  the  owner  and  not  under  license. 
It  must  continue  for  the  whole  period,  that  is,  twenty 
years,  without  interruption. 

§  327.  Temporary  rights  of  way. — There  is  a  tem- 
porary right  of  way  over  the  adjoining  land  if  a  public 
highway  becomes  impassable,  as  by  the  falling  of  a  tree, 
the  washing  away  of  a  bridge  or  a  part  of  the  highway 
itself.  But  this  is  not  so  of  a  private  right  of  way,  the 
reason  being  that  the  owner  of  the  way  may  be  bound 


208  EI^EMENTARV    LAW  [§  328 

to  repair,  and  the  condition  of  the  private  way  may  be 
owing  to  his  neglect;  but  if  a  pnbhc  highway  becomes 
impassable,  it  is  for  the  general  good  that  the  people 
should  be  entitled  to  pass  in  that  direction. 

§  328.  Easements. — An  easement  is  a  right  in  the 
owner  of  one  parcel  of  land,  by  reason  of  such  owner- 
ship, to  use  the  land  of  another  for  a  special  purpose  not 
inconsistent  with  a  general  property  in  the  owner.  We 
have  already  spoken  of  rights  of  way,  both  public  and 
private,  which  are  both  easements.  To  these  may  be 
added  the  right  to  water  cattle  at  a  spring  or  pond  or 
stream  on  the  land  of  another,  the  right  to  take'  and 
use  such  water  for  domestic  purposes,  the  right  of  the 
owner  of  a  building  to  discharge  the  water  from  his 
roof  upon  another's  land,  the  right  to  swing  doors,  shut- 
ters, gates  over  another's  land,  the  right  to  lay  pipes  to 
conduct  water,  gas,  sewage,  the  right  to  put  a  partition 
fence  or  a  party-wall  partly  on  the  land  of  an  adjacent 
proprietor.  A  mere  permission  by  one  landowner  to 
another  to  use  his  land  for  a  given  purpose  is  a  license, 
and  will  not  be  an  easement.  An  easement  by  prescrip- 
tion can  only  be  perfected  in  the  manner  pointed  out 
as  to  rights  of  way. 

A  party-wall  is  a  wall  built  by  agreement  on  the 
division  lines  of  estates,  which  each  proprietor  has  a  right 
to  use  as  a  support  to  buildings.  Each  owner  of  land 
has  an  easement  in  the  adjoining  land  for  lateral  support 
of  his  land  in  its  natural  state.  This  easement  does  not 
extend  to  any  structures  which  increase  the  weight.  In 
constructing  a  party-wall,  the  builder  must  erect  it  in  a 
skillful  manner,  and  if  he  does  not  do  so  he  is  liable 
for  any  damage  that  may  result.  Either  party  may 
repair  the  wall  by  underpinning,  or  increasing  its  height. 
but   he   must   be   careful    that    no   damage    is    occasioned 


§  330]  INCOIJPOREAI,    PROPERTY  209 

thereby.  Where  one  erects  a  wall  partly  on  the  land 
of  another,  who  sees  it  and  has  reason  to  believe  that 
the  builder  looks  to  him  for  contribution,  the  jury  may, 
from  such  conduct,  infer  that  he  agreed  to  pay  for  it. 
Express  agreements  of  the  parties  in  relation  to  the  build- 
ing, use,  repair  and  payment  for  party-walls  are  binding. 
It  is  an  unsettled  question,  however,  whether  such  agree- 
ments continue  in  favor  of  and  against  the  assignees  or 
grantees  of  tlie  parties  who  make  them. 

Easements  may  be  lost  by  nonuser  where  an  inten- 
tion to  abandon  may  be  inferred.  They  are  extinguished 
where  the  same  party  becomes  the  owner  of  the  domi- 
nant and  servient  estates,  the  maxim  being  that  no  man 
can  have  an  easement  on  his  own  land. 

§  329.  OfHces  and  dignities. — Offices  and  dignities, 
which  are  mentioned  by  Blackstone  as  incorporeal  heredit- 
aments, can  not  be  so  considered  in  a  country  where  most 
offices  are  elective  at  stated  times  for  limited  terms,  and 
where  none  are  held  longer  than  during  good  behavior. 
Officers  in  private  corporations  are  mere  agents,  whose 
authority  and  duties  will  be  treated  of  in  their  appropriate 
place. 

§  330.  Franchises. — A  franchise  is  a  special  privilege 
conferred  by  the  government  on  individuals,  which  does 
not  belong  to  the  citizens  of  the  country  generally  by 
common  right.  Kent  defines  it  as  a  particular  privilege, 
conferred  by  grant  from  the  government  and  vested  in 
individuals.  In  a  popular  sense,  it  is  synonymous  with 
right  or  privilege,  as  the  elective  franchise.  Among  the 
most  important  of  modern  franchises  is  the  right  to  be 
a  corporation,  the  franchise  to  control  a  toll-road,  or 
bridge,  or  to  keep  a  ferry. 

14 — Elem.  Law. 


210  ELEMENTARY    LAW  [§  331 

§331.  Rents. — Rents  are  a  species  of  incorporeal 
property.  Rent  is  a  compensation  given  for  the  posses- 
sion of  some  corporeal  inheritance.  It  may  be  paid  in 
money,  in  kind,  by  services  or  in  any  manner  agreed 
upon  by  the  parties.  Rent  is  regularly  due  and  payable 
on  the  premises  from  which  it  arises.  Where  a  for- 
feiture of  a  term  for  nonpayment  of  rent  is  attempted, 
the  rent  by  the  old  rule  was  strictly  demandable  and  pay- 
able before  the  time  of  sunset  of  the  day  whereon  it  is 
reserved,  but  now  it  is  not  considered  due  until  midnight 
of  the  natural  day  on  which  it  is  payable.  The  day  of 
payment  is  usually  fixed  by  the  contract,  and  when  this 
is  silent  it  is  payable  monthly  or  quarterly,  according  to 
the  custom  prevailing  at  the  time  and  place. 

§332.  Liens. — A  lien  is  the  right  of  a  creditor  to 
have  his  debt  or  demand  satisfied  out  of  specific  prop- 
erty. Liens  may  be  classified  as  statutory,  equitable,  con- 
tract, or  common-law  liens.  The  lien  of  a  state  or 
municipality  for  taxes,  liens  given  to  contractors,  material- 
men and  laborers  upon  houses  or  other  structures  upon 
which  they  have  bestowed  labor,  or  for  which  they  have 
furnished  material,  liens  of  judgments,  are  created  by 
statute.  An  artisan  or  mechanic  who  receives  material 
with  which  he  constructs  an  article  for  another,  or  re- 
ceives an  article  to  be  repaired,  has  a  lien  upon  the  article 
for  his  labor.  An  innkeeper  has  a  lien  upon  the  baggage 
and  personal  affects  of  his  guest  for  his  board  and  lodg- 
ing. A  carrier  or  a  workman  has  a  lien  for  his  charges. 
An  attorney  has  a  lien  upon  papers  or  funds  of  his  client 
in  his  possession  for  his  services.  A  banker  has  a  lien  on 
his  debtor's  funds  in  the  bank.  These  are  examples  of 
common-law  liens.  A  seller  of  land  who  receives  a  part 
of  the  purchase-money  has  a  lien  upon  the  land  for  the 
unpaid  balance.     Persons  not  bound  by  any  obligation  to 


§  332]  INCORPOREAL  PROPERTY  211 

do  the  service,  who  perform  labor  in  saving  a  ship  or  her 
cargo,  or  the  lives  of  persons  belonging  to  her,  from 
danger  or  loss  in  cases  of  shipwreck,  derelict,  capture  or 
the  like,  are  salvors  and  have  a  lien  upon  the  ship  and 
cargo  for  the  value  of  the  services  so  rendered.  These 
are   some   examples   of  equitable   liens. 

Liens  by  contract  are  created  by  the  express  agree- 
ment of  the  parties,  as  in  case  of  a  loan  of  money,  when 
at  the  time  the  loan  is  made  the  borrower  either  verbally 
or  by  written  instrument  pledges  a  specific  piece  of 
property  as  security  for  the  repayment  of  the  money. 
When  the  property  is  personal  and  is  placed  in  the  hands 
of  the  lender,  it  is  a  pledge.  When  the  borrower  retains 
possession,  but  executes  and  delivers  to  the  lender  an 
instrument  in  writing,  giving  the  lender  the  right  to  have 
his  debt  paid  out  of  the  property  described  in  the  instru- 
ment, it  is  a  mortgage  which  creates  a  lien  upon  such 
property,  which  may  be  enforced  by  foreclosure,  if  the 
debt  is  not  paid  at  maturity. 


Sec. 

Sec. 

333. 

Its  origin  and  nature. 

339. 

334. 

Allodial  estates. 

335. 

Wardship  and  marriage. 

340. 

336. 

Local  courts. 

341. 

?,Z7. 

Homage  and  fealty. 

342. 

338. 

Military  service. 

343. 

CHAPTER  XXV 

THE  FEUDAL  SYSTEM 

Other   obligations    of   the 

tenant. 
Domesday  Book. 
Escuage. 

Changes  in  feudal  system. 
343.     Abolition  of  the  system. 

§  333.  Its  origin  and  nature. — While  it  is  not  in- 
tended, nor  is  it  necessary  here,  to  give  a  minute  account 
of  the  feudal  system  of  England,  some  acquaintance  with 
its  principal  features  is  requisite  to  an  understanding  of 
the  subject  of  estates  in  land.  The  germs  of  a  feudal 
system  existed  among  the  Romans,  but  in  its  entireness 
it  never  subsisted  anywhere  before  it  arose  in  the  middle 
ages  in  those  parts  of  Europe  in  which  the  Germanic 
nations  settled  themselves  after  the  subversion  of  the 
Roman  empire.  The  essential  character  of  the  estate 
denominated  "feud,"  or  "fief"  was  that  from  the  first 
and  always  it  continued  to  be  not  an  estate  of  absolute 
ownership.  The  property,  the  ownership  remained  in 
the  grantor,  the  grantee  was  a  mere  tenant.  Originally, 
these  "fiefs"  were  resumable  at  the  pleasure  of  the 
grantor,  which  made  the  tenure  precarious  and  kept  the 
tenant  in  a  state  of  timorous  vassalage.  To  incur  the 
displeasure  of  liis  chief  or  grantor  meant  expulsion  from 
his  estate.  The  grantor  was  known  as  the  suzerain  or 
lord,  and  the  grantee  as  vassal  or  tenant.  Subsequently, 
the  relation  of  lord  and  tenant  was  ameliorated,  first  by 
giving  the  tenure  a  fixed  duration  for  a  term  of  years. 
Later  still,  the  relation  and  tenure  became  permanent,  the 

212 


§  334]  THE    FEUDAL    SYSTEM  213 

vassal  taking  an  oath  of  fealty  to  his  lord,  in  which  he 
bound  himself  to  render  fixed  services,  in  return  for 
which  he  was  to  have  his  lands,  so  long  as  the  service 
was  rendered.  The  obligation  was  mutual  and  an 
attempt  of  the  lord  to  dispossess  a  tenant,  who  was 
faithful,  was  looked  upon  as  an  act  of  injustice.  These 
fiefs  were  then  extended  to  life  tenures.  Then  they  be- 
came descendible  to  the  eldest  son,  and  afterwards  to 
the  collateral  lines,  and  still  later  they  became  inheritable 
by  females.  When  fiefs  first  became  hereditary  is  i 
matter  of  dispute  with  historians,  but  in  all  the  changes 
in  the  system  the  relation  of  lord  and  tenant  survived, 
the  ultimate  property  was  still  in  the  lord.  Even  after 
fiefs  became  descendible,  the  new  occupant  was  required 
to  make  a  new  oath  of  fealty  and  acknowledge  his  vas- 
salage, and  thus  obtain,  in  form  at  least,  a  new  grant 
from  his  lord,  and  he  was  bound  to  the  same  service 
which  was  the  consideration  for  the  first  grant.  In  case 
of  the  extinction  of  the  descendible  line,  or  where  the 
fief  was  lost  or  forfeited  by  the  crime  of  the  vassal,  it 
escheated  to  the  lord.  At  first  it  was  only  sovereign 
princes  who  granted  fiefs,  but  when  they  became 
hereditary  and  fixed,  the  vassal  himself  would  grant  por- 
tions of  his  fief  to  others,  and  thus  there  grew  up  the 
practice  of  subinfeudation. 

§  334.  Allodial  estates. — Fiefs  were  not  the  only 
sort  of  land  tenures  in  the  ancient  Germanic  provinces. 
Some  lands  were  allodial,  that  is  they  were  held  by  abso- 
lute and  independent  title,  and  the  holder  owing  no  fealty 
to  an  overlord  was  free  from  the  exactions  and  burdens 
to  which  the  holder  of  a  fief  was  subject.  But  this 
freedom  from  vassalage  had  its  disadvantages.  If  the 
holder  by  such  a  tenure  owed  no  fealty,  he  did  not  enjoy 
the  protection  of  a  superior,  which  was  due  to  a  vassal 


214  ELEMENTARY    LAW  [§  335 

who  held  a  fief.  Wars  were  frequent  among  the  feudal 
lords,  and  these  allodial  proprietors  were  often  the  victims 
of  oppression.  They  were  without  organization,  had  no 
superior,  and  were  at  the  mercy  of  their  more  power- 
ful neighbors.  This  led  to  a  surrender  of  their  tenures 
to  the  lords,  to  whom  they  made  their  oath  and  fealty 
and  secured  protection.  This  absorption  of  the  allodial 
lands  was  general  in  Italy,  France,  Germany  and  Eng- 
land. William,  the  Norman,  had  witnessed  in  France 
the  evil  effects  of  the  divided  allegiance  of  the  people. 
The  vassal's  first  and  paramount  allegiance  was  to  his 
lord,  and  in  cases  of  conflict  with  his  king,  the  vassal 
was  true  to  his  immediate  protector.  After  the  conquest, 
William  imposed  new  conditions  upon  those  to  whom 
he  gave  the  lands  of  England.  The  vassal  took  a  double 
oath,  first  to  the  king  and  under  him  to  the  lord.  So 
that  Coke  could  say,  in  writing  of  English  tenures,  that 
"All  the  lands  and  tenements  in  England,  in  the  hands 
of  subjects,  are  holden  mediately  or  immediately  of  the 
king;  for  in  the  law  of  England  we  have  not,  properly, 
allodium." 

§  335.  Wardship  and  marriage. — Some  of  the  inci- 
dents of  the  system,  as  it  existed  in  some  parts  of  Ger- 
many and  France  and  in  England,  bore  with  oppressive 
weight  upon  the  vassals.  These  were  the  incidents  of 
wardship  and  marriage.  The  lord  was  guardian  of  the 
person  and  estate  of  the  infant  tenant  during  minority, 
and  the  profits  accruing  therefrom  added  greatly  to  the 
lord's  revenues.  So,  before  a  female  ward  became  of 
age,  the  lord  claimed  and  asserted  the  right  of  tendering 
her  a  husband.  If  she  rejected  the  offer  she  forfeited  the 
value  of  the  marriage,  that  is,  as  much  as  any  one  would 
give  to  the  lord  for  permission  to  marry  her.     This  right 


§  337]  THE    FEUDAL    SYSTEM  215 

was    extended    to    male    and    female    heirs,    and    also    to 
widows. 

§  336.  Local  courts. — The  grant  of  land  as  a  fief 
was  usually  accompanied  by  a  grant  of  jurisdiction, 
under  which  local  courts  were  established,  in  which  legal 
controversies  arising  among  the  subjects  living  within  the 
bounds  of  the  manor  were  adjudicated.  These  manorial 
courts  founded  by  the  Normans  exist  under  different 
names  in  England. 

§  337.  Homage  and  fealty. — Primarily,  the  feudal 
tenure  was  based  upon  the  obligation  or  duty  of  the 
vassal  to  render  military  service  to  his  lord.  When  the 
fief  was  granted,  the  vassal  made  homage  to  his  lord  in 
this  fashion:  "He  shall  be  ungirt,  and  his  head  un- 
covered, and  his  lord  shall  sit,  and  the  tenant  shall  kneel 
before  him  on  both  his  knees,  and  hold  his  hands  jointly 
together  between  the  hands  of  his  lord  and  shall  say 
thus:  T  become  your  man  from  this  day  forward  of  life 
and  limb,  and  of  earthly  worship,  and  unto  you  shall  be 
true  and  faithful,  and  bear  to  you  faith  for  the  tene- 
ments that  I  claim  to  hold  of  you,  saving  the  faith  that  I 
owe  unto  our  sovereign  lord  the  king;'  and  then  the  lord 
so  sitting  shall  kiss  him."  The  obligation  of  homage, 
says  Fleta,  is  mutual,  binding  the  lord  to  protection  of 
the  vassal,  as  well  as  the  vassal  to  fidelity.  Homage 
was  done  without  an  oath,  but  when  a  freeholder  did 
fealty  to  his  lord  it  was  required  that,  "he  shall  hold  his 
right  hand  upon  a  book,  and  shall  say  thus:  *Know  ye 
this,  my  lord,  that  I  shall  be  faithful  and  true  unto 
you,  and  faith  to  you  shall  bear  for  the  lands  which  I 
claim  to  hold  of  you,  and  that  I  shall  lawfully  do  to  you 
the  customs  and  services  which  I  ought  to  do,  at  the 
terms  assigned,  so  help  me  God  and  His  saints,'  and  he 


216  ElvEMENTARY    LAW  [§  338 

shall  kiss  the  book.  But  he  shall  not  kneel  when  he 
maketh  his  fealty,  nor  shall  make  such  humble  reverence 
as  is  aforesaid  in  homage." 

§  338.  Military  service. — The  extent  of  military 
service  due  to  the  lord  from  his  tenant  or  vassal  was 
indeterminate  at  first,  but  afterwards,  as  the  vassal  became 
more  independent,  it  was  fixed  by  usage  or  custom  at 
forty  days  on  every  occasion  in  which  his  lord  required 
his  services.  Women  and  the  clergy  were  obliged  to  send 
substitutes.  Certain  public  officers  were  wholly  exempt 
from  personal  military  service.  The  other  duties  of  the 
vassal,  as  Mr.  Hallam  gives  them,  were  as  follows :  "It 
was  a  breach  of  faith  to  divulge  the  lord's  counsel,  to 
conceal  from  him  the  machinations  of  others,  to  injure 
his  person  or  fortune,  or  to  violate  the  sanctity  of  his 
roof  and  the  honor  of  his  family.  In  battle  he  was 
bound  to  lend  his  horse  to  his  lord,  when  dismounted;  to 
adhere  to  his  side  while  fighting,  and  to  go  into  captivity 
as  a  hostage  for  him  when  taken.  His  attendance  was 
due  at  the  lord's  courts,  sometimes  to  witness  and  some- 
times  to   bear   a   part   in   the   administration   of   justice." 

§  339.  Other  obligations  of  the  tenant. — We  have 
mentioned  wardship  and  marriage  as  two  of  the  incidents 
of  the  relation  of  lord  and  tenant  which  were  a  source  of 
pecuniary  profit  to  the  lord.  His  revenues  were  re- 
plenished by  other  means.  Every  new  entrant  upon  a 
fief  paid  a  sum  of  money  which  was  called  a  "relief." 
When  a  tenant  left  no  heir  or  forfeited  his  estate  for 
crime,  it  escheated  to  the  lord.  When  a  tenant  sold  any 
part  of  his  fief,  a  fine  was  paid  for  the  permission  to 
sell,  and  finally  there  were  sums  paid  for  various  "aids," 
— to  ransom  the  lord  when  a  prisoner,  to  make  his  eldest 
son  a  knight,  to  marry  the  lord's  eldest  daughter  by  giv- 


§  342]  the;  feudai.  system  217 

ing  her  a  portion.  The  amount  of  the  last  two  was  fixed 
by  act  of  parhament  in  time  of  Edward  III,  at  twenty 
shillings  each,  but  these  aids  were  wholly  abolished  in 
the  reign  of  Charles  II. 

§  340.  Domesday  Book. — King  William,  when  he 
felt  secure  in  his  possession  of  the  English  throne,  held 
a  council  to  inquire  into  the  state  of  the  nation  and  by 
his  order  the  Domesday  Book  was  compiled.  This  book 
contains  minute  and  accurate  surveys  of  the  lands  of  the 
kingdom.  The  work  was  committed  to  five  justices  in 
each  county,  in  the  year  1081,  and  it  was  finished  in  five 
years.  This  book,  or  books,  for  it  consists  of  two 
volumes,  is  preserved  in  the  chapter  house  at  West- 
minster. It  gave  the  king  full  information  as  to  the 
military  resources  of  the  kingdom,  and  has  been  invalu- 
able to  the  English  people  in  settling  disputed  boundary 
lines. 

§  341.  Escuage. — As  the  hereditary  character  of 
fiefs  became  established,  the  tenant  ceased  to  be  de- 
pendent and  subject  to  his  lord.  In  course  of  time, 
a  pecuniary  payment  became  the  sole  method  by 
which  the  tenant  discharged  his  obligations.  Henry 
II  found  It  inconvenient  to  keep  the  military  force 
of  the  kingdom  in  a  state  of  efficiency,  and  he  dis- 
pensed with  the  personal  military  services  of  the 
vassals,  and  substituted  in  lieu  thereof  the  payment 
of  a  fixed  sum  called  "escuage,"  which  is  simply  an- 
other name  for  taxes,   as  we  now  know  them. 

§  342.  Changes  in  feudal  system. — The  practice  of 
subdivision  and  sale  of  feuds  worked  great  changes 
in  the  rules  of  tenure  and  succession.  This  practice 
became    so    common   that   it    caused    alarm,    and   by    a 


218  EI^EMENTARY    LAW  [§  343 

provision  of  the  charter  of  Henry  III,  subinfeudation 
was  restricted,  and  in  the  time  of  Edward  I  it  was 
forbidden.  As  a  substitute,  lands  were  allowed  to  be 
sold,  but  the  purchaser  took  and  held  title  just  as  his 
grantor  did.  This  applied  to  sales  of  a  man's  entire 
interest  in  land,  and  was  held  not  to  prohibit  the  vol- 
untary alienation  of  land  by  persons  during-  their  life- 
time. Under  the  feudal  system,  lands  could  not  be 
sold  for  debt.  By  degrees,  however,  the  power  of  the 
creditor  over  the  debtor's  land  was  increased,  until 
by  the  modern  statutes  of  bankruptcy  in  England  the 
whole  of  a  bankrupt  debtor's  lands  have  become  abso- 
lutely salable  for  the  payment  of  his  debts.  So  by 
a  statute  (3  and  4  Wm.  IV,  ch.  104),  all  a  deceased 
person's  interest  in  land  of  whatever  kind,  not  charged 
by  his  will  with  payment  of  debts,  whether  he  was 
a  trader  within  the  bankrupt  laws  or  not,  constitutes 
assets  to  be  administered  in  equity  for  the  payment 
of  debts. 

§  343.  Abolition  of  the  system. — In  spite  of  these 
changes  in  some  parts  of  the  ancient  feudalism,  many 
of  its  substantial  provisions  remained  in  force,  and  it 
was  not  until  after  the  civil  war,  which  began  in 
1641,  that  the  profits  of  wardship  and  marriage,  and 
other  feudal  prerogatives,  were  swept  away.  The 
court  of  wards  was  discontinued  in  1645,  and  it  was 
further  enacted  that  all  wardships,  liveries,  primer 
seizins,  values,  forfeitures  of  marriage,  etc.,  by  reason 
of  any  tenure  of  the  king  or  others,  should  be  totally 
taken  away,  and  that  all  fines  for  alienation,  tenures 
by  homage,  knight-service  and  escuage,  etc.,  were 
abolished.  Of  which  statute  Blackstone  says:  "It 
was  a  greater  acquisition  to  the  civil  property  of  this 
kmgdom   than   even    IMagna   Charta   itself;    since   that 


§  343]  THE    FICUDAI^    SYSTEM  219 

only  pruned  the  luxuriances  that  had  grown  out  of 
the  military  tenures,  and  thereby  preserved  them  in 
vigor;  but  the  statute  of  King  Charles  extirpated  the 
whole,  and  demolished  both  root  and  branches."  (12 
Charles  II,  ch.  24..) 


CHAPTER  XXVI 


ANCIENT  TENURES 


Sec. 

Sec. 

344. 

Tenure. 

350. 

Knight  service, 

345. 

Property  holden   of  supe- 

351. 

Aids. 

rior. 

352. 

Relief. 

346. 

Lord  paramount. 

353. 

Primer  seizin. 

347. 

Middle    lords    and    tenant 

354. 

Wardship. 

paravaile. 

355. 

Marriage. 

348. 

Free  and  base  tenure. 

356. 

Fines. 

349. 

Frank    tenement    and    vil- 
lenage. 

357. 

Escheat. 

§  344.  Tenure. — Before  quitting  this  branch  of  the 
subject,  and  proceeding  to  a  consideration  of  modern 
Engh'sh  tenures,  and  the  law  of  tenures  as  it  prevails 
in  the  United  States,  let  us  by  way  of  summary  or 
recapitulation  give  the  nature  and  definitions  of  the 
ancient  English  tenures,  as  they  existed  under  the 
laws  of  feudalism. 


§  345.  Property  holden  of  superior. — All  real  prop- 
erty was  holden  of  some  superior,  in  consideration  of 
certain  services  to  be  rendered  to  the  lord  by  the 
tenant  or  possessor  of  the  property.  The  thing  holden 
was  a  tenement.  The  possessor  was  a  tenant.  The 
manner  of  possession  was  tenure. 

§  346.  Lord  paramount. — The  king,  because  all  land 
was  holden  mediately  or  immediately  of  him,  was  lord 
paramount. 

§  347.  Middle  lords  and  tenant  paravaile. — Persons 
who   held   immediately   of   the   king,    and   granted   por- 

220 


§  350]  ANCIENT  TENURES  221 

tions  of  their  lands  to  others,  were  called  middle  lords. 
The  grantee  of  the  middle  lord  was  called  tenan/ 
paravaile,  or  the  lowest  tenant. 

§  348.  Free  and  base  tenure. — These  tenures  were 
held  by  four  different  kinds  of  service.  As  to  quality 
they  were  free  or  base,  as  to  quantity  certain  or  uncer- 
tain. Free  services  were  such  as  were  not  unbecom- 
ing to  a  soldier,  such  as  fighting  for  his  lord,  or  pay- 
ing a  sum  of  money.  Base  services  were  servile,  plow- 
ing, making  hedges  and  the  like.  Certain  services 
were  fixed  in  quantity,  as  to  days  of  military  service 
or  payment  of  a  fixed  sum.  Uncertain  services  de- 
pended on  unknown  contingencies. 

§  349.  Frank-tenement  and  villenage. — From  these 
services  arose  four  kinds  of  tenure.  Tenements  were 
of  two  kinds,  frank-tenement  and  villenage.  Some 
frank-tenements  were  held  in  consideration  of  hom- 
age and  knight  service ;  others  in  free  socage,  with 
the  service  of  fealty  only.  Of  villenage,^  there  was 
pure  villenage  and  privileged  villenage.  A  tenant 
by  pure  villenage  was  bound  to  do  whatever  was  com- 
manded him,  and  he  was  bound  to  an  uncertain  serv- 
ice. A  tenant  by  villein  socage  was  bound  to  do 
villein  service,  but  it  was   certain. 

§  350.  Knight  service. — Of  these,  knight  service 
was  the  niost  honorable.  For  a  knight's  fee,  estimated 
at  twelve  plowlands  (about  one  hundred  and  twenty 
acres)  each  tenant  must  attend  his  lord  to  the  wars 
for  forty  days  in  every  year,  if  called  upon;  if  he  held 
less  than  a  knight's  fee,  his  service  was  to  be  in  pro- 
portion. These  were  the  original  services,  and  the 
other  incidents  grew  up  by  a  series  of  fraudulent 
impositions. 


222  ELEMENTARY    LAW  [§  351 

^351.  Aids. — Aids  were  at  first  mere  benevolences 
granted  by  the  tenant  to  his  lord  in  time  of  difficulty 
and  distress,  but  in  time  they  grew  to  be  matters  of 
right.  There  were  three ;  to  ransom  the  lord,  to  make 
his  eldest  son  a  knight,  and  to  marry  his  eldest 
daughter. 

§  352.  Relief. — Relief  was  a  fine  or  sum  of  money 
exacted  by  the  lord  from  the  new  tenant  when  the 
estate  lapsed  by  the  death  of  a  form.er  tenant. 

§  353.  Primer  seizin. — Primer  seizin  was  a  sum 
of  money  equal  to  a  year's  profits  of  the  lands  from 
the  heirs  of  a  tenant  in  capite  (one  holding  imme- 
diately of  the  king),  which  the  king  exacted. 

§  354.  Wardship. — Wardship  gave  the  lord  the 
custody  of  the  lands  and  person  of  the  tenant  under 
age  without  being  compelled  to  account  for  profits. 

§  355.  Marriage. — Marriage  was  the  right  of  the 
lord  to  select  a  husband  or  wife  for  his  ward,  and  if 
his  selection  was  rejected,  he  could  recover  whatever 
a  jury  would  assess  as  damages,  or  as  much  as  any 
one  would  bona  fide  give  for  the  alliance. 

§  356.  Fines. — Fine  was  a  sum  exacted  from  a  ten- 
ant for  a  license  to  sell  part  of  his  holding. 

§  357.  Escheat. — Escheat  was  the  resumption  of 
the  fee  by  the  lord,  when  issue  failed  or  where  the 
estate  was  lost  by  the  crime  of  the  tenant. 

Brave  and  spirited  people  became  restive  under  these 
onerous  burdens,  and  but  for  the  statute  of  Charles  II, 
above  quoted,  which  abolished  these  exactions,  the  mon- 
archy itself  might  have  been  subverted. 


CHAPTER  XXVII 


MODERN   ESTATES 


Sec. 

Sec. 

358. 

Influence    of    feudal    sys- 

378. 

tem. 

379. 

359. 

Early  grants  affected. 

380. 

360. 

Revival  of  allodial  tenure. 

361. 

Sovereignty   as    source    of 

381. 

title. 

382. 

362. 

Estates. 

383. 

363. 

Fee  simple. 

384. 

364. 

Fee  simple  in  abeyance. 

385. 

365. 

Use  of  word  "heirs". 

366. 

Estates  for  life. 

386. 

367. 

Rights  of  life  tenant. 

368. 

Emblements. 

387. 

369. 

Taxes  and  interest. 

370. 

Waste. 

388. 

371. 

Estates  for  years. 

389. 

372. 

Rent. 

390. 

373. 

Duration  of  tenancy. 

391. 

374. 

Distress. 

392. 

375. 

Apportionment  of  rent. 

393. 

2,76. 

Estates  at  will. 

394. 

m. 

Estates  at  sufferance. 

Base  fee. 

Conditional  fee. 

Estates  tail  and  statute  de 
donis. 

Tenant  by  the  curtesy. 

Dower. 

Assignment  of  dower. 

Estates  upon   condition. 

Estates  upon  condition 
implied. 

Estates  upon  condition  ex- 
pressed. 

Conditions  precedent  and 
subsequent. 

Estates  in  remainder. 

Rule  in  Shelley's  Case. 

Executory  devises. 

Estates  in  reversion. 

Estates   in   severalty. 

Joint  tenancy. 

Tenancy  in  common. 


§  358.  Influence  of  feudal  system. — Judge  Cooley, 
speaking  of  tenures  in  America,  says:  "Although  the 
feudal  system  never  obtained  much  foothold  in  this 
country,  there  are  many  things  in  our  law  of  real  estate 
which  require  for  their  understanding  that  we  bear  in 
mind  the  fact  that  the  American  system  is  based  upon 
the  common  law  of  England,  and  that  that  law  grew  up 
while  the  feudal  system  was  in  force.  As  lands  in 
England  were  held  under  that  system,  and  its  maxims 
thoroughly  pervaded  the  law  of  real  estate,  it  was  not  to 

223 


224  ELEMENTARY    I,AW  [§  359 

be  expected  that  when  grants  of  land  were  made  in  this 
country  under  circumstances  unknown  in  England,  a  new 
system  of  law  with  new  terms  and  maxims  would  at 
once  spring  into  existence  to  provide  for  the  new  con- 
dition of  things  and  bearing  no  trace  of  the  system  which 
it  supplanted." 

§  359.  Early  grants  affected. — As  a  matter  of  fact, 
however,  the  early  grants  in  America  were  made  with  a 
reference  to  a  continuation  of  something  like  a  feudal 
tenure,  and 'many  incidents  of  that  system  attached  them- 
selves to  these  grants.  The  tenure  prescribed  was  tenure 
in  free  and  common  socage,  to  be  held  of  the  king,  as 
of  some  manor  in  England.  When  the  colonies  threw  off 
allegiance  to  the  crown,  and  became  independent  states, 
each  of  them  succeeded  to  all  the  rights  of  the  crown 
within  its  limits,  while  the  United  States  as  a  sovereignty 
succeeded  to  all  the  rights  of  the  crown  to  unoccupied 
territory  not  within  the  limits  of  any  of  the  states  and 
not  previously  conveyed. 

§  360.  Revival  of  allodial  tenure. — Being  thus  pos- 
sessed of  the  vacant  lands,  the  United  States  and  the 
several  individual  states  have  proceeded  to  make  sale  and 
conveyance  thereof  and  to  give  titles  which,  though 
called  fees,  are  in  truth  allodial.  At  the  same  time  the 
states  by  statutory  and  constitutional  provisions  have 
gradually  abolished  such  of  the  feudal  incidents  as  still 
attached  to  the  estates  previously  granted  by  the  crown, 
until,  as  Chancellor  Kent  says,  3  Com.  513,  "By  one 
of  those  singular  revolutions  incident  to  human  affairs, 
allodial  estates,  once  universal  in  Europe,  and  then  almost 
universally  exchanged  for  feudal  tenures,  have  now,  after 
the  lapse  of  many  centuries,  regained  their  primitive 
estimation  in  the  minds  of  freemen." 


§  364]  MODERN    ESTATES  225 

§  361,  Sovereignty  as  source  of  title. — In  America 
as  in  England  the  sovereignty  is  recognized  as  the  source 
of  all  title,  and  the  state  succeeds  thereto  in  default  of 
heirs;  but  this  right  is  not  peculiar  to  the  feudal  system; 
neither  is  eminent  domain,  which  is  sometimes  referred 
to  as  a  remaining  incident  of  the  feudal  system. 

§  362.  Estates. — An  estate  in  lands,  tenements  and 
hereditaments  signifies  such  interest  as  the  tenant  has 
therein.  An  estate  is  either  for  an  uncertain  period,  as 
for  life,  for  a  certain  period  of  years,  or  unlimited,  as 
when  it  is  vested  in  a  man  and  his  heirs  forever,  without 
mentioning  what  heirs.  This  last  is  an  estate  in  fee 
simple,  which  is  the  largest  estate  a  man  can  have  in 
lands. 

§  363.  Fee  simple. — The  fee  simple,  or  inheritance 
of  lands,  is  generally  vested  in  some  person  or 
other.  Inferior  estates  may  be  carved  out  of  it.  One 
may  have  the  fee  simple,  another  may  have  a  term  for 
years,  another  may  have  a  life  estate,  another  may  have 
the  right  of  possession,  another  may  be  in  actual  posses- 
sion, of  the  same  land. 

§  364.  Fee  simple  in  abeyance. — A  fee  simple  may 
be  in  abeyance,  according  to  Blackstone,  as  where  there  is 
a  grant  to  John  for  life,  and  afterwards  to  the  heirs  of 
Richard.  The  fee  in  such  can  not  vest  in  the  heirs  of 
Richard  till  his  death,  because  no  one  can  be  an  heir  of 
the  living,  and  John  has  plainly  a  life  estate  only.  The 
fee,  therefore,  is  in  abeyance  while  Richard  lives.  The 
inconvenience  resulting  from  this  notion  has  led  some 
learned  writers  to  repudiate  it.  Kent  says  that  though 
the  good  sense  of  the  thing  and  the  weight  of  liberal 
doctrine  are  strongly  opposed  to  the  ancient  notion  of 
IS — Elein.  Law. 


226  ELe;me;ntary  law  [§  365 

an  abeyance,  the  technical  rule  is  that  livery  of  seizin 
takes  the  reversion  of  the  inheritance  from  the  grantor, 
and  leaves  him  no  tangible  or  disposable  interest.  He 
cites  Preston  on  Estates  as  insisting  that  an  estate  in 
freehold,  depending  on  another  estate  of  freehold  and 
limited  on  a  contingency,  must  be  in  abeyance. 

§  365.  Use  of  word  "heirs." — At  common  law, 
where  it  was  intended  to  convey  a  fee  simple  estate  by 
deed,  the  word  "heirs"  was  essential.  In  many  of  the 
United  States  this  strict  rule  has  been  abrogated  by  stat- 
ute. In  some  states  a  form  of  deed  is  prescribed  by 
statute,  which  prescribes  what  the  effect  may  be.  The 
short  form  in  Indiana,  which  is  in  substance,  "A  con- 
veys and  warrants  to  B"  certain  land,  describing  it,  is 
held  to  be  sufficient  to  conve)?^  the  land,  with  the  appur- 
tenances and  hereditaments  to  the  grantee,  his  heirs  and 
assigns  with  covenants  of  seizin  and  warranty,  as  fully 
as  if  these  words  and  the  full  covenants  were  written  in 
the  deed.  A  government  grant  in  any  form  the  legisla- 
ture may  prescribe  will  take  effect  according  to  the 
legislative  intent.  A  grant  to  a  sovereignty  requires  no 
words  of  inheritance.  The  strict  rule  requiring  the  use 
of  the  word  "heirs,"  to  create  or  convey  a  fee  has  no 
application  to  wills.  Where  the  testator's  intention  to 
create  an  estate  of  inheritance  is  manifest  from  the  whole 
will,  it  will  be  so  construed.  Some  states  have  gone  so 
far  as  to  enact  by  statute  that  every  devise  of  land  shall 
be  construed  to  convey  a  fee  simple,  unless  it  appears  by 
express  words  that  a  less  estate  was  intended. 

In  suits  to  compel  the  specific  performance  of  agree- 
ments to  convey  land  equity  will  sustain  the  right  of  a 
party  asking  a  conveyance  in  fee  where  it  appears  to  have 
been  the  intention  of  the  parties  to  contract  for  a  fee. 


§  367]  MODERN  estate;s  227 

§  366.  Estates  for  life. — Estates  for  life  are  next 
in  importance.  These  outranlv  estates  for  hundreds  of 
years,  because  it  is  said  that  no  one  knows  how  long  a 
man  may  live.  Where  an  estate  for  life  is  carved  out 
of  a  fee  the  land  comes  back  to  the  grantor  when  the 
estate  for  life  ends,  and  that  which  the  grantor  has  is  an 
estate  in  reversion;  if,  however,  a  grant  is  made  for  life 
to  one,  and  at  his  death  to  another  and  his  heirs,  this 
latter  takes  a  remainder  in  fee.  An  estate  for  life  may 
be  for  the  life  of  the  grantee  or  for  the  life  of  another. 
An  estate  for  life  in  this  country  terminates  with  the 
natural  death  of  the  person.  Civil  death,  as  it  is  called 
in  England,  is  not  now  known  in  this  country.  When 
one  entered  a  monastery  he  was  civilly  dead,  and  in  this 
country  under  the  first  general  bankrupt  law  the  bankrupt 
was  regarded  as  civilly  dead. 

§  367.  Rights  of  life  tenant. — The  life  tenant  has 
certain  rights  determining  the  use  he  may  make  of  the 
property.  He  may  take  such  wood  and  timber  as  may 
be  necessary  to  keep  up  the  buildings  and  inclosures  and 
to  supply  him  with  fuel.  He  has  no  right  to  cut  down 
timber  and  sell  it  for  mere  profit,  but  if  there  is  a  dis- 
proportion of  woodland  to  arable  land  he  may  make  a 
clearing;  that  is,  he  may  remove  the  growing  timber  and 
dispose  of  the  same  so  as  to  increase  the  arable, land. 
The  general  rule  is  that  he  is  entitled  to  the  temporary 
use  of  the  estate  as  he  finds  it,  but  in  the  United  States, 
whether  cutting  any  kind  of  trees  in  any  particular  case 
is  waste  seems  to  depend  upon  the  question  whether  the 
act  is  such  as  a  prudent  farmer  would  do  with  his  own 
land,  having  regard  to  the  land  as  an  inheritance,  and 
whether  the  doing  of  it  would  diminish  the  value  of  the 
land  as  an  estate. 


22S  ELKMiCNTARY    LAW  [§  368 

§  368.  Emblements. — On  the  death  of  a  life  tenant 
his  representatives  have  a  right  to  the  growing  crops 
upon  which  the  tenant  has  bestowed  his  labor.  In  fact, 
whenever  one  holds  lands  for  an  uncertain  term,  and  dies, 
the  emblements,  or  growing  crops,  which  are  the  fruit  of 
his  labor,  go  to  his  representatives.  The  mere  prepara- 
tion of  the  land  for  sowing  will  not  give  such  right  unless 
the  tenant  has  planted. 

§  369.  Taxes  and  interest. — The  life  tenant  who 
receives  the  profits  of  the  land  must  keep  down  the  taxes, 
and  if  wdien  he  comes  to  the  estate  it  is  incumbered,  he 
must  pay  the  interest  on  the  incumbrance,  though  he  is 
not  bound  to  discharge  the  principal. 

§  370.  Waste. — If  a  life  tenant  commits  or  permits 
waste,  he  may  be  enjoined  at  the  suit  of  the  remainder- 
man or  reversioner.  If  he  permits  taxes  to  become 
delinquent,  so  that  the  estate  is  in  danger  of  being  sold, 
the  courts  will  sometimes,  upon  a  proper  showing,  decree 
a  forfeiture  of  the  life  estate. 

§  371.  Estates  for  years. — An  estate  for  years  is 
where  one  is  entitled  to  the  possession  and  profits  of 
land  for  a  certain  period.  This  estate  is  always  created 
by  th^  acts  of  the  parties.  The  instrument  creating  it 
is  termed  a  lease,  and  tlie  parties  are  landlord  and  tenant. 
The  execution  and  delivery  of  the  lease  perfects  the 
title  of  the  tenant.  Sometimes  these  leases  are  practically 
interminable,  though  in  form  and  theory  they  are  for  a 
fixed  term,  as  where  one  leases  lands  for  a  term  of 
ninety-nine  years,  renewable  forever.  It  is  quite  common 
for  railway  companies  to  lease  their  lines  to  other  com- 
panies for  a  period  of  nine  hundred  and  ninety-nine 
years,  and  yet  in  law  such  estates  and  terms  are  deemed 


§  372]  MODERN   ESTATES  229 

to  be  of  less  dignity  than  a  life  estate.  In  some  particu- 
lars the  rights  of  the  tenant  for  years  are  the  same  as 
those  which  belong  to  the  tenant  for  life.  The  tenant 
for  years  has  no  right  to  emblements,  for  the  term  of 
his  tenancy  is  fixed,  but  he  may  take  timber  sufficient  for 
fuel  and  to  keep  up  the  repairs  of  buildings  and  enclo- 
sures, and  he  may  sublet  the  premises,  unless  that  right 
is  cut  off  or  restricted  by  the  terms  of  the  lease,  and  he 
is  liable  in  damages  for  waste,  and  may  be  enjoined  in 
equity  from  committing  or  permitting  it. 

§  372.  Rent. — Rent,  according  to  Blackstone,  is  "a 
certain  profit  issuing  yearly  out  of  lands  and  tenements 
corporeal,"  or  it  is  a  periodical  compensation  in  money 
or  otherwise  agreed  to  be  given  by  the  tenant  to  the 
landlord  for  the  use  of  realty,  the  payment  of  which  may 
be  enforced  like  any  other  demand.  One  occupying  the 
land  of  another,  where  there  is  no  contract  to  pay  a 
specific  rent,  is  liable  not  for  rent  as  such,  but  for  the 
use  and  occupation  of  the  premises,  the  amount  to  be 
reasonable,  and  in  cases  of  dispute  to  be  fixed  by  the 
jury. 

If  a  tenant  is  evicted  by  a  title  superior  to  that  of 
his  landlord,  the  obligation  to  pay  rent  ceases ;  but  so 
long  as  he  remains  in  possession,  neither  the  right  of  the 
landlord  to  demand  rent  nor  the  landlord's  title  can  be 
disputed  by  the  tenant. 

A  destruction  of  the  premises  by  some  inevitable 
accident  will  not  exonerate  the  tenant  from  liability  to 
pay  rent  for  the  unexpired  term  unless  the  lease  contains 
a  stipulation  to  that  effect.  There  are  exceptions  to  this 
rule,  as  where  one  rents  apartments  in  a  block  and  the 
whole  structure  is  destroyed,  the  obligation  to  pay  rent 
ceases.  And  it  has  been  held  that  where  the  premises  are 
destroyed  after  the  execution  of  a  lease,  and  before  the 


230  ELEMENTARY    LAW  [§  373 

lessee  has  taken  possession,  the  tenant  is  not  hable,  and 
so  a  contract  for  a  term  to  begin  in  the  future  does  not 
bind  the  tenant  to  pay  rent,  if  before  the  beginning  of 
the  term  the  premises  are  destroyed.  And  in  case  of  a 
partial  destruction  of  a  building,  if  the  insurance  company 
takes  possession  to  restore  the  premises,  the  tenant  is  not 
liable  for  rent,  while  the  insurance  company  occupies  the 
building  for  that  purpose. 

Where  a  lease  provides  for  a  forfeiture  for  nonpay- 
ment of  rent  when  due,  a  tender  or  readiness  to  pay  on 
the  premises  at  any  time  before  sunset  on  the  day  stipu- 
lated will  be  sufficient.  If  a  different  place  for  payment 
is  designated  in  the  lease,  the  payment  or  tender  must  be 
made  there. 

§  373.  Duration  of  tenancy. — In  ascertaining  the 
time  of  the  beginning  and  ending  of  a  term  where  the 
words  "month"  and  "year"  occur  in  leases  the  Gregorian 
calendar  is  used,  by  which  the  beginning  of  the  year  is 
January  1.  Prior  to  the  year  1752  the  Julian  calendar, 
fixing  the  beginning  of  the  year  on  the  25th  of  March, 
was  used.  When  the  word  "year"  occurs  in  a  statute  or 
contract  it  is  to  be  understood  as  meaning  the  whole 
twelve  months  according  to  the  calendar,  unless  a  con- 
trary intention  is  clearly  expressed.  The  period  of  time 
is  always  to  be  settled  according  to  the  intention  of  the 
parties.  At  common  law  a  month  meant  a  lunar  month, 
but  now  it  is  held  to  mean  a  calendar  month,  both  in 
England  and  the  United  States.  A  natural  day  is  full 
twenty-four  hours,  and  in  legal  contemplation  the  legal 
day  is  without  fractions,  but  if  two  acts  are  performed 
on  the  same  day  and  it  is  important  which  was  first  in 
time,  evidence  will  be  heard  to  fix  the  exact  hour  and 
minute.  This  becomes  important  in  disputes  as  to  the 
priority  of  liens,   deeds,   time  of  recording  and  the  like. 


§  374]  MODERN    ESTATES  231 

In  computing  time  from  the  day  of  the  date,  or  from  a 
certain  act  or  event,  the  day  of  the  date  or  act  is  to  be 
excluded,  unless  it  is  clear  that  the  parties  to  the  instru- 
ment had  a  different  intent.  A  week  means  a  full  week 
of  seven  days,  and  if  by  statute  or  rule  of  court  a  notice 
is  to  be  published  for  a  certain  number  of  weeks,  the 
publication  is  not  completed  until  the  number  of  weeks 
has  fully  expired  from  the  date  of  the  first  publication. 
Thus,  if  the  publication  is  to  be  once  in  each  week  for 
six  successive  weeks,  and  the  first  publication  is  on 
Tuesday,  the  publication  is  not  completed  without  includ- 
ing Monday  of  the  seventh  week,  which  is  the  forty- 
second  day,  and  whatever  was  to  be  done  dependent  on 
such  publication  could  not  be  done  earlier  than  Tuesday 
of  that  week.  When  the  day  for  the  performance  of  an 
act  or  the  payment  of  money  falls  on  a  legal  holiday,  the 
next  business  day  following  is  the  one  on  which  per- 
formance or  payment  is  to  be  made;  except,  however, 
that  where  days  of  grace  are  allowed,  and  the  last  day  of 
grace  falls  on  a  legal  holiday,  the  next  preceding  business 
day  is  the  day  for  payment.  The  computation  of  time 
and  the  meaning  to  be  given  to  terms  such  as  "month," 
"year,"  etc.,  are  often  the  subject  of  statutory  regulation, 
and  where  there  is  a  conflict,  statute  law  supersedes  and 
displaces  the  common  law. 

§  374.  Distress. — Distress  was  a  right  which  the 
landlord  had  at  common  law  to  seize  and  hold  the 
tenant's  personal  property  to  enforce  the  payment  of  rent. 
It  became  unpopular  in  the  United  States,  has  been 
abolished  in  some  of  them  by  statute,  and  has  been  super- 
seded by  the  ordinary  remedies  for  the  recovery  of  money 
due.  Some  states  give  the  landlord  a  first  lien  upon  all 
crops  for  the  security  of  his  rent. 


232  EI^EMENTARY    LAW  [§  375 

§  375.  Apportionment  of  rent. — During  the  exist- 
ence of  the  tenancy  the  landlord  or  reversioner  may  sell 
part  of  the  leased  premises.  In  such  cases  the  rent  is 
apportioned  and  paid  to  the  new  owners  in  proportion 
to  the  value  of  the  land. 

§  376.  Estates  at  will. — An  estate  at  will  was  for- 
merly when  a  tenant  occupied  at  the  mere  pleasure  of 
him  who  had  the  next  estate.  The  landlord  could  termi- 
nate it  any  moment  without  notice.  This  harsh  rule  was 
modified  at  first,  so  that  an  estate  at  will  was  equally  at 
the  will  of  both  parties,  and  later  it  became  settled  that 
unless  there  was  an  express  agreement  to  hold  at  will, 
such  tenancies  should  be  construed  as  estates  from  year 
to  year.  These  changes  have  virtually  abolished  the  old 
tenancy  at  will,  and  now  such  estates  are  determinable 
by  notices  to  quit,  and  the  form  and  length  of  time  for 
giving  notice  is  regulated  by  statute.  Tenants  holding 
such  estates  are  entitled  to  emblements,  owing  to  the 
uncertainty  of  their  tenure. 

§  377.  Estates  at  sufferance. — An  estate  at  suffer- 
ance is  where  one  who  comes  lawfully  into  possession 
of  land  holds  over  after  his  interest  is  determined.  And 
while  he  is  not  liable  strictly  for  rent  as  such,  he  is  liable 
for  such  sum  as  may  be  reasonable  in  an  action  for  use 
and  occupation.  In  some  states,  a  penalty  in  addition 
to  this  is  awarded  against  one  who  unlawfully  deprives  the 
owner  of  the  use  of  his  land. 

§  378.  Base  fee. — A  base  or  qualified  estate  in  fee 
is  an  interest  which  may  continue  forever,  but  may  be 
determined  without  the  aid  of  a  conveyance  by  some  act 
or  event  circumscribing  its  duration.  A  limitation  to  a 
man  and  his  heirs,  so  long  as  he  shall  have  heirs  of  his 
body,   or   so   long  as   St.    Paul's   church   shall   stand,   are 


§  380]  MODERN   ESTATES  233 

examples  of  this  sort  of  an  estate.  The  owner  of  such 
an  estate  has  all  the  rights  of  an  owner  of  a  fee  simple, 
until  his  estate  is  determined.  Such  estates  are  called 
base  because  their  duration  depends  upon  the  occurrence 
of  collateral  circumstances  which  qualify  and  debase  the 
purity  of  the  fee. 

§  379.  Conditional  fee. — A  conditional  fee  is  one 
which  restrains  the  fee  to  some  particular  heirs  exclusive 
of  others,  as  to  the  heirs  of  a  man's  body,  or  to  the 
heirs  male  of  his  body.  At  common  law  this  was  con- 
strued to  be  a  fee  simple  on  condition  the  grantee  had  the 
heirs  prescribed.  If  he  died  without  such  heirs  the 
estate  reverted  to  the  grantor.  If  he  had  such  heirs  the 
fee  became  absolute  in  him,  and  he  could  sell  his  estate 
and  bar  his  own  issue  and  prevent  a  reverter.  This 
right  of  the  grantee  was  cut  off  by  the  statute  of  Edward 
I,  which  prohibited  a  sale  by  the  grantee,  to  the  detri- 
ment of  his  issue  and  the  grantee's  reversioner. 

§  380.  Estates  tail  and  statute  de  donis. — This  stat- 
ute converted  what  before  had  been  a  fee  simple  estate 
into  an  estate  in  fee  tail.  This  restraint  upon  the  power 
of  alienation  fettered  inheritances  and  created  perpetuities, 
which  were  condemned  by  Bacon  and  Coke  and  other 
writers.  The  landed  aristocracy  opposed  all  attempts  to 
facilitate  sales  of  land,  but  the  growing  spirit  of  com- 
merce and  industry,  foiled  by  the  legislature,  found  ex- 
pression in  a  species  of  judicial  legislation,  by  which  the 
fiction  of  a  common  recovery  was  allowed  to  cut  off  the 
entail.  Common  recoveries  were  fictitious  suits,  in  the 
nature  of  pious  frauds,  allowed  by  the  courts,  the 
object  of  which  was  to  get  rid  of  the  mischievous  con- 
sequences of  the  statute  of  Edward  I.  If  the  tenant 
wished  to  have  his  estate  tail  converted  into  an  absolute 


234  ELEMENTARY    LAW  [§  381 

fee,  he  procured  himself  to  be  sued  by  a  fictitious  person, 
who  claimed  that  the  tenant  had  no  right  to  the  land. 
The  parties  to  the  suit,  as  the  made-up  record  would 
show,  then  compromised  the  case  and  a  judgment  was 
entered,  the  result  of  which  was  that  what  was  formerly 
a  fee  tail  estate  was  converted  into  an  absolute  fee  with 
all  its  incidents.  To  such  awkward  shifts,  such  subtle 
refinements,  says  Blackstone,  were  our  ancestors  obliged 
to  have  recourse  in  order  to  get  the  better  of  that  stub- 
born statute  of  Edward  I.  The  design  for  which  these  con- 
trivances were  set  on  foot  was  certainly  laudable,  the  un- 
riveting  the  fetters  of  estates  tail,  which  were  attended  with 
a  legion  of  mischiefs  to  the  commonwealth,  but  while  we 
applaud  tlie  end  we  can  not  admire  the  means. 

Estates  in  fee  tail  with  all  their  inconveniences  existed 
in  this  country  before  the  Revolution.  They  have  now 
become  obsolete  from  disuse  or  have  been  abolished  or 
modified  by  the  legislatures  of  the  different  states.  The 
general  tendency  of  judicial  decision  as  well  as  legislation 
in  this  country  has  been  in  the  direction  of  removing  all 
limitations  upon  the  power  of  sale  of  real  estate,  and 
preventing  perpetuities. 

§  381.  Tenant  by  the  curtesy. — Where  a  man  mar- 
ries a  woman  who  is  seized  during  marriage  of  an 
estate  of  inheritance,  and  has  by  her  issue  born  alive 
capable  of  inheriting  the  estate,  and  the  wife  dies  before 
the  husband,  he  takes  an  estate  for  life.  This  is  some- 
times called  tenancy  by  the  curtesy  of  England,  though 
the  same  estate  existed  in  ancient  times  in  other  countries. 
In  this  country  the  rule  prevails  in  all  the  states  where 
that  kind  of  estate  has  not  been  abolished  by  statute. 
Though  it  is  held  that  the  wife's  dower  is  lost  by  her 
adultery,  no  such  conduct  on  the  part  of  the  husband  will 
work  a  forfeiture  of  the  curtesy. 


§  383]  MODERN   ESTATES  235 

§  382.  Dower. — Dower  exists  where  a  man  seized 
of  an  estate  of  inheritance  dies  in  the  Hfetime  of  his 
wife.  By  the  common  law  she  was  entitled  in  that  case 
to  be  endowed  of  a  third  of  the  estate  for  life.  At  first 
it  was  limited  to  lands  held  by  the  husband  at  the  time 
of  the  marriage,  but  by  Magna  Charta  it  was  extended 
to  all  lands,  of  which  the  husband  was  seized  during 
coverture.  This  right  or  estate  of  dower  exists  in  all  of 
the  states  where  it  has  not  been  modified  or  changed  by 
statute.  Dower  can  not  be  claimed  as  against  a  mortgage 
given  by  the  husband  for  unpaid  purchase-money.  Nor 
is  it  necessary  for  a  wife  to  join  with  her  husband  in  a 
mortgage  securing  the  purchase-money.  If  the  wife 
unites  with  her  husband  in  conveying  his  land,  releasing 
her  dower  therein,  her  right  is  extinguished.  If  a  wife 
joins  in  a  mortgage  with  her  husband,  who  dies,  and  upon 
foreclosure  a  surplus  above  the  mortgage  debt  is  realized, 
she  may  have  dower  in  such  surplus,  though  the  husband 
may  have  released  the  equity  of  redemption.  Dower  may 
be  barred  in  various  ways,  though  the  husband  by  his 
act  alone,  without  the  wife's  assent,  can  not  bar  it.  It 
may  be  barred  by  deed,  by  the  adultery  of  the  wife,  by 
divorce,  by  jointure,  which  is  a  joint  estate  settled  upon 
husband  and  wife  by  which  the  whole  estate  goes  to  her 
on  his  death,  by  an  antenuptial  contract  in  which  in  lieu 
of  dower  a  sum  of  money  or  something  else  is  agreed 
to  be  taken  in  lieu  of  dower,  by  a  bequest  in  lieu  of 
dower,  if  the  widow  elects  to  take  under  the  will. 

§  383.  Assignment  of  dower. — The  widow's  dower 
may  be  set  off  or  assigned  by  agreement  with  the  heirs, 
or  by  an  amicable  partition,  or  by  an  adversary  proceed- 
ing in  which  the  court  will  see  that  she  gets  her  equitable 
one-third  of  the  real  estate,  to  which  her  right  of  dower 
has  attached. 


236  ELEMENTARY    LAW  [§  384 

§  384.  Estates  upon  condition. — Estates  upon  con- 
dition are  such  as  have  a  quahfication  annexed  to  them 
by  which  they  may  upon  the  happening  of  a  particular 
event  be  created,  enlarged  or  destroyed.  They  are 
divided  into  estates  upon  conditions  implied  in  law^,  and 
estates  upon  conditions  express  or  in  deed. 

§  385.  Estates  upon  condition  implied. — A  tenant 
for  life  or  for  years  is  under  an  implied  obligation  to 
refrain  from  waste  or  any  fraudulent  or  wrongful  act 
which  would  injure  the  freehold.  For  wilful  misconduct 
of  this  sort,  the  estate  may  be  forfeited.  So  a  grant  to 
a  man  of  an  office  has  the  implied  condition  annexed  to 
it  that  he  will  perform  its  duties.  A  corporation  holds  a 
franchise  under  the  implied  condition  that  it  will  fulfill 
its  duties  to  the  public,  and  a  violation  of  its  duties  by 
nonuser  or  misuse  will  work  a  forfeiture  of  the  estate. 
It  is  to  be  here  remarked,  however,  that  it  is  for  the 
state  alone,  and  not  for  a  private  citizen,  to  institute  and 
carry  on  proceedings  for  forfeiture  of  corporate  fran- 
chises. The  state  may  waive  a  condition  broken  as  an 
individual  may. 

§  386.  Estates  upon  condition  expressed. — Where 
an  estate  is  granted  in  fee  simple  or  otherwise,  with  an 
express  qualification  annexed  whereby  the  estate  shall 
commence,  be  enlarged  or  defeated  upon  performance  or 
breach  of  such  qualification  or  condition,  it  is  an  estate  upon 
condition  expressed.  Conditions  are  either  precedent  or 
subsequent.  Precedent  conditions  must  happen  or  be  per- 
formed before  the  estate  vests.  Subsequent  conditions  are 
such  which  by  reason  of  nonperformance  defeat  the  estate 
already  created. 

§  387.     Conditions  precedent  and   subsequent. — The 


§  387]  MODERN   ESTATES  237 

intention  of  the  parties  as  it  appears  in  the  deed  deter- 
mines whether  the  condition  is  precedent  or  subsequent. 
A  condition  precedent  which  is  possible  and  lawful  must 
be  strictly  performed.  Conditions  subsequent  which 
defeat  the  estate  are  strictly  construed  against  the  grantor. 
Conditions  must  be  annexed  at  the  time  the  estate  is 
created;  they  must  operate  upon  the  whole  of  the  estate, 
though  they  may  be  limited  to  a  part  of  the  land.  If 
an  estate  in  fee  is  granted  with  a  provision  that  upon 
the  happening  of  an  event  the  estate  shall  cease  for  a 
number  of  years,  it  would  not  be  good.  Conditions  can 
only  be  reserved  in  favor  of  the  grantor  and  his  heirs. 
Conditions  which  are  impossible  when  made,  or  become 
so  by  the  act  of  God,  are  void.  Unlawful  conditions  are 
void.  Conditions  repugnant  to  the  nature  of  the  estate 
are  not  good,  as  where  an  estate  is  given  in  fee  on  con- 
dition that  the  grantee  will  not  sell  it  or  enjoy  it.  Con- 
ditions In  absolute  prevention  of  marriage  are  void, 
though  in  some  states  widows  who  take  lands  from  their 
deceased  husbands  coupled  with  such  a  condition  are 
bound  by  the  conditions.  Conditions  may  be  performed 
by  any  one  having  an  interest  in  the  estate.  Equity  will 
relieve  against  forfeitures  for  breach  of  conditions  when 
compensation  can  be  made  in  damages.  Where  a  condi- 
tion is  broken  the  grantor  may  bar  himself  from  taking 
advantage  of  it,  as  by  taking  rent  afterwards  with  knowl- 
edge. Mortgages  are  sometimes  treated  under  the  head 
of  estates  upon  condition.  They  are  so  considered  yet 
in  some  of  the  states,  but  in  most  of  them  they  are 
treated  as  mere  liens.  The  common-law  rule  is  that  the 
mortgagee  takes  the  title  subject  to  be  defeated  by  pay- 
ment of  the  mortgage  debt.  This  rule  prevails  in  most 
of  the  older  states,  but  a  large  majority  of  the  states  of 
the  Union,  either  by  statute  or  the  decrees  of  the  courts, 
treat  a  mortgage  as  a  mere  lien  to  secure  the  debt,  while 


238  EI^EMENTARY    LAW  [§  388 

the  title  remains  in  the  mortgagor  until  default,  fore- 
closure and  sale.  The  methods  by  which  the  mortgagor 
proceeds  to  enforce  his  lien  after  the  maturity  of  the 
mortgage  debt  are  regulated  by  the  statutes  of  the  differ- 
ent states. 

§  388.  Estates  in  remainder. — Estates  in  remainder 
were  popular  in  England  because  they  facilitated  the 
creation  of  family  settlements,  and  often  there  were 
several  remainders  limited  upon  one  another  to  prevent  an 
estate  passing  out  of  the  family.  Remainders  are  not 
favored  in  this  country,  anything  tending  to  obstruct  the 
free  sale  of  land  being  opposed  to  the  spirit  of  our 
people  and  institutions.  Blackstone's  definition  is  con- 
cise and  comprehensive.  "An  estate  in  remainder  is  an 
estate  limited  to  take  effect  and  be  enjoyed  after  another 
estate  is  determined."  It  is  a  vested  remainder  where 
there  is  a  person  in  being  who  would  have  an  immediate 
right  of  possession  upon  the  ceasing  of  the  precedent 
estate.  It  is  a  contingent  remainder  if  the  person  to 
whom,  or  the  event  upon  which,  it  is  limited  is  uncertain. 
If  one  holding  the  fee  simple  grants  lands  to  A  for 
twenty  years,  and  then  to  B  and  his  heirs  forever,  A 
is  tenant  for  years,  remainder  to  B  in  fee.  Or  there 
may  be  a  grant  to  A  for  years,  then  to  B  for  life,  and 
then  to  C  and  his  heirs  forever,  then  A  is  tenant  for 
years,  B  for  life,  with  remainder  in  fee  to  C.  These 
several  estates  are  parts  of  one  estate,  the  fee  simple 
of  the  grantor  out  of  which  the  three  several  estates  are 
carved.  It  follows,  of  course,  that  no  remainder  can  be 
limited  after  a  grant  in  fee  simple.  There  must  be  a 
precedent  estate  created,  upon  which  the  remainder  is 
limited,  and  this  precedent  estate  is  called  in  law  the 
particular  estate.  It  is  essential  also  that  the  remainder 
must  commence  or  pass  out  of  the  grantor  at  the  time  the 


§  390]  MODERN    ESTATES  239 

particular  estate  was  created.  The  remainder  must  vest 
in  the  grantee  during  the  continuance  of  the  particular 
estate,  or  instantly  upon  its  termination.  A  contingent 
remainder  may  never  take  effect,  as  where  there  is  a 
grant  to  A  for  life,  remainder  to  B's  eldest  son  (then 
unborn)  in  tail.  If  B  has  no  son  when  the  particular 
estate  is  determined,  that  is,  at  the  death  of  A,  the  re- 
mainder is  gone. 

§  389.  Rule  in  Shelley's  Case. — And  here  is  a  proper 
place  to  consider  what  is  known  as  the  rule  in  Shelley's 
Case.  It  was  laid  down  in  the  following  language  in  1 
Rep.  104  as  follows:  "It  is  a  rule  of  law,  where  an 
ancestor  by  any  gift  or  conveyance  takes  an  estate  in 
freehold,  and  in  the  same  gift  or  conveyance  an  estate  is 
limited  mediately  or  immediately  to  his  heirs  in  fee  or  in 
tail,  that  always  in  such  case  the  heirs  are  words  of 
limitation  of  the  estate  and  not  words  of  purchase." 
Land  is  acquired  in  two  ways,  by  descent  and  purchase. 
Where  one  derives  title  through  a  deed  or  will,  he  is  a 
purchaser.  Where  it  comes  to  him  by  virtue  of  his  kin- 
ship or  relation  to  an  ancestor,  he  takes  by  descent.  But 
if  by  will  an  estate  is  given  which  is  the  same  in  quality 
and  quantity  as  that  which  would  go  by  descent,  it  is  an 
estate  by  descent.  The  effect  of  the  rule  in  Shelley's 
Case  was  to  cut  off  what  would  seem  to  be  intended  as 
a  remainder  limited  to  the  heirs  of  the  grantee,  and  to 
make  the  estate  an  absolute  fee  in  the  grantee.  This  rule 
has  been  generally  adopted  in  this  country  as  a  part  of 
the  common  law,  although  it  has  been  modified  or  abol- 
ished by  statute  in  some  of  them. 

§  390.  Executory  devises. — An  executory  devise  of 
lands  is  such  disposition  of  them  by  will  that  thereby  no 
estate  vests  at  the  death  of  the  devisor,  but  only  on  some 


240  ELEMENTARY   LAW  [§  391 

future  contingency.  Executory  devises  were  created  to 
carry  out  the  purposes  of  the  testator.  A  devise  to  a 
femme  sole  and  heirs  upon  the  day  of  her  marriage  is  a 
good  executory  devise.  If  she  does  not  marry  the  estate 
would  go  by  descent  to  the  heirs  of  the  testator.  A  devise 
to  A  and  his  heirs,  but  if  he  dies  before  the  age  of 
twenty-one  years,  then  to  B  and  his  heirs,  is  good,  though 
if  these  words  were  used  in  a  deed  the  remainder  would 
be  void  and  A  would  take  a  fee.  Executory  devises 
were  abused  by  making  them  the  means  of  creating 
perpetuities.  So  there  is  a  rule  at  common  law  which  has 
been  incorporated  into  the  statute  law  of  many  states  that 
the  utmost  length  of  time  that  is  allowed  for  the  con- 
tingency of  an  executory  devise  to  happen  in,  is  the  dur- 
ation of  a  life  or  lives  in  being  and  twenty-one  years 
afterw'ards. 

§  391.  Estates  in  reversion. — An  estate  in  reversion 
is  the  residue  of  an  estate  left  in  the  grantor  to  com- 
mence in  possession  after  the  determination  of  some  par- 
ticular estate  granted  out  by  him.  It  grows  out  of  the 
legal  maxim  that  whatever  a  man  does  not  dispose  of 
remains  to  him  and  his  heirs.  It  is  a  present  interest, 
but  can  only  take  effect  in  the  future  as  is  implied  in 
the  definition  above  given. 

§  392.  Estates  in  severalty. — Estates  are  now  to  be 
considered  with  respect  to  the  owners  thereof,  whether 
in  severalty,  is  tenants  in  common  or  as  joint  tenants. 
An  estate  in  severalty  is  one  which  has  a  single  owner. 

§  393.  Joint  tenancy. — At  common  law  a  joint  ten- 
ancy was  where  lands  or  tenements  were  granted  to  two 
or  more  persons,  to  hold  in  fee  simple,  fee  tail,  for  life, 
for  years  or  at  will.  In  joint  tenancies,  there  must  be 
unity  of  interest,  of  title,  of  time  and  of  possession.    One 


§  394]  MODERN   ESTATES  241 

of  the  incidents  of  this  tenancy  at  common  law  was  the 
right  of  survivorship,  by  which  on  the  death  of  one  the 
entire  estate  vested  in  the  survivor.  In  this  sense,  joint 
tenancies  do  not  exist  in  this  country,  except  in  the  case 
of  conveyances  to  husband  and  wife  jointly.  These  are 
called  tenancies  by  the  entirety.  No  part  of  such  an 
estate  can  be  sold  by  one  so  as  to  affect  the  right  of 
survivorship  of  the  other.  No  part  of  it  can  be  seized 
in  execution  for  the  debt  of  either  during  its  continu- 
ance, and  upon  the  death  of  one  the  whole  vests  in  the 
survivor.  In  Ohio  the  courts  have  refused  to  recognize 
such  a  tenancy,  by  holding  that  husband  and  wife  holding 
by  joint  deed  or  devise  are  tenants  in  common,  without 
the  right  of  survivorship. 

§  394.  Tenancy  in  common. — A  tenancy  in  com- 
mon is  where  there  are  several  owners  who  may  hold  by 
different  titles,  in  different  interests,  which  may  be  ac- 
quired at  different  times,  the  only  unity  being  unity  of 
possession. 

Tenants  in  common  may  have  partition  of  the  lands. 
They  may  sue  one  another  for  waste.  The  possession 
of  one  is  the  possession  of  all.  If  one  receives  all  the 
rent,  or  more  than  his  share,  he  is  liable  to  the  other 
tenants  for  the  excess.  They  are  liable  for  their  pro- 
portionate share  of  the  expense  for  repairs,  for  taxes 
and  for  insurance.  Tenants  in  common  must  act  in  good 
faith  towards  each  other.  One  can  not  buy  in  the  estate 
for  himself  at  a  delinquent  tax  sale.  If  one  buys  in  an 
outstanding  title  which  threatens  the  estate,  he  can  not 
claim  this  in  his  own  right,  to  the  prejudice  of  his  co- 
tenants,  if  they  are  willing  to  pay  their  share  of  the 
purchase-money. 


16 — Elem.  Law. 


CHAPTER  XXVIII 


TITLE   TO    REAL   PROPERTY,    HOW   ACQUIRED 


Sec. 

Sec. 

395. 

Ways  of  acquiring  title. 

406. 

396. 

Title  by  occupancy. 

407. 

397. 

Adverse  possession. 

398. 

Occupying  claimant. 

408. 

399. 

Title  by  marriage. 

409. 

400. 

Title  by  descent. 

410. 

401. 

Title  by  devise. 

411. 

402. 

Wills. 

412. 

403. 

Capacity   to   make   wills — 

Written  wills. 

413. 

404. 

Revocation  of  wills. 

414. 

405. 

Title  by  purchase. 

415. 

Title  bond. 

Deeds  by  owners  not  in 
possession. 

Forms  of  deeds. 

Registration  of  deeds. 

Parties  to  deeds. 

Deeds  by  officers. 

Description  of  land  con- 
veyed. 

Title  by  eminent   domain. 

Title  by  escheat. 

Title  by  forfeiture. 


§  395.  Ways  of  acquiring  title. — Title  or  ownership 
of  real  property  may  be  acquired  by  occupancy  or  posses- 
sion when  it  continues  long  enough  to  ripen  into  a  per- 
fect title,  by  marriage,  by  devise,  by  descent,  or  by  con- 
tract. 


§  396.  Title  by  occupancy. — Mere  possession  or  oc- 
cupancy is  the  lowest  form  of  title,  but  it  is  good  in  the 
occupant  against  the  world  until  some  one  shows  a  better 
title,  but  any  show  of  right  in  a  claimant  would  be  good 
as  against  a  mere  intruder.  As  we  have  seen,  property 
without  an  owner  belongs  to  the  first  one  who  takes  pos- 
session of  it.  This  right,  which  was  so  important  at  the 
time  of  the  early  settlements  on  this  continent,  is  of  little 
value  now  that  most  of  our  public  domain  has  been  dis- 
posed of.  Its  assertion  by  the  European  nations,  who  are 
extending  what  they  choose  to  call  their  "spheres  of  influ- 
ence"  in  Africa,   bids   fair  to  result  in  serious  complica- 

242 


§  397]  TITLE  TO  REAL  PROPERTY,    HOW   ACQUIRED  243 

tions  and  wars  such  as  grew  up  here  in  the  last  century 
between  France  and  England.  Where  two  claim  by  pos- 
sessory titles,  one  being  in  present  possession  and  the 
other  having  had  prior  possession,  it  is  the  rule  in  Eng- 
land and  America  that  proof  of  prior  possession  is 
presumptive  evidence  of  title  and  will  prevail  over  the 
claims  of  the  more  recent  occupant.  It  is  not  necessary 
in  such  a  case  that  the  prior  possession  should  have  con- 
tinued for  twenty  years.  The  statutes  of  limitations 
usually  provide  that  no  action  for  the  recovery  of  the 
title  or  possession  of  real  estate  shall  be  maintained  after 
twenty  years  from  the  time  the  cause  of  action  accrued, 
unless  the  person  entitled  to  such  action  was  under  the 
disabilities  of  infancy,  coverture,  insanity  or  imprison- 
ment. Special  periods  of  limitations  are  fixed  by  the 
statutes  of  different  states  and  they  are  constantly  under- 
going modification. 

§  397.  Adverse  possession. — In  order  to  make  pos- 
session for  the  statutory  period  of  limitations  a  bar  to 
an  action,  the  possession  must  be  adverse.  Adverse  pos- 
session is  a  possession  inconsistent  with  the  right  of  the 
true  owner;  in  other  words,  where  a  person  possesses 
property  in  a  manner  in  which  he  is  not  entitled  to  pos- 
sess it,  and  without  anything  to  show  that  he  possesses  it 
otherwise  than  as  owner — that  is,  with  the  intention  of 
excluding  all  persons  from  it,  including  the  rightful  owner 
— he  is  in  adverse  possession  of  it.  Thus,  if  A  is  in 
possession  of  a  field  of  B's,  he  is  in  adverse  possession 
of  it,  unless  there  is  something  to  show  that  his  possession 
is  consistent  with  a  recognition  of  B's  title.  Adverse 
possession  depends  upon  the  intention  with  which  it  is 
taken  and  held.  Where  there  is  an  unintentional  en- 
croachment on  the  land  of  another,  as  where  a  man  think- 
ing he  is  building  on  his  own  line  by  mistake  puts  part 


244  ELEMENTARY    LAW  [§  398 

of  the  structure  over  the  hne,  such  possession  is  not  ad- 
verse. The  possession  must  be  hostile  or  adverse,  actual, 
visible,  notorious,  exclusive,  continuous  and  under  claim 
of  title. 

§  398.  Occupying  claimant. — It  sometimes  happens 
that  one  has  a  claim  of  title,  and  thinking  it  good  enters 
upon  land  of  another  and  makes  valuable  improvements 
on  it.  In  such  a  case  the  occupant  may,  under  the 
occupying  claimant's  statutes,  which  have  been  enacted  in 
most  of  the  states,  file  his  complaint  and  have  his  im- 
provements and  the  land  appraised  separately,  and  the 
owner  is  then  given  the  option  to  take  possession  upon 
his  paying  the  claimant  the  appraised  value  of  the 
improvements  and  the  taxes  paid,  with  interest,  deducting 
the  value  of  the  rents  and  profits  and  the  damages 
assessed  against  the  occupant  for  waste  or  other  causes. 
If  the  owner  fails  to  make  his  election,  the  occupant  may 
remain  in  possession  upon  paying  the  value  of  the  land 
aside  from  the  improvements.  This  is  not  a  common-law 
right,  but  is  purely  statutory. 

§  399.  Title  by  marriage. — Title  by  marriage  or  by 
dower  and  curtesy  we  have  already  considered. 

§  400.  Title  by  descent. — Where  a  man  dies  intes- 
tate being  the  owner  of  lands,  the  law  disposes  of  the 
property  by  transferring  the  title  to  those  who  by  virtue 
of  the  law  of  the  place  where  the  land  lies  are  his  heirs. 
The  title  the  heirs  take  is  a  title  by  descent,  and  the  per- 
son from  whom  the  estate  descends  is  called  in  law  the 
ancestor.  The  statutes  of  descent  vary  in  the  different 
states  according  to  the  wishes  of  the  citizens  as  expressed 
in  legislation,  as  in  some  states,  where  those  of  the  whole 
blood  of  the  ancestor  are  preferred  to  those  of  the  half- 


§  401]  TITI^E  TO  RE,Ah  PROPE;rTY,    HOW  ACQUIRED  245 

blood,  etc.  Those  who  take  land  by  descent  take  it 
charged  with  its  burdens ;  these  may  be  in  the  form  of 
mortgage  or  other  lien  created  by  the  ancestor,  or  in 
the  form  of  a  general  indebtedness,  which,  so  far  as  it 
is  in  excess  of  the  personal  estate  of  the  ancestor,  is  a 
charge  upon  the  real  estate.  Personal  property  left  by  an 
ancestor  also  descends  to  his  heirs,  but  with  this  differ- 
ence, the  line  of  descent  as  to  personal  property  is  fixed 
by  the  laws  of  the  place  where  the  ancestor  resided  at 
the  time  of  his  death,  not  where  he  happened  to  be,  but 
the  place  of  his  fixed  residence;  while  the  line  of  descent 
as  to  his  land  is  governed  by  the  law  of  the  place  where 
it  lies.  Where  heirs  are  of  one  class,  as  sons  or 
daughters,  they  take  equally,  share  and  share  alike,  but 
if  there  are  children  and  grandchildren,  the  children  take 
a  full  share  each,  and  each  set  of  grandchildren  take  what 
'their  parent  would  have  taken  if  living.  But  in  some 
states,  as  in  Indiana,  if  there  are  grandchildren  only  left 
as  heirs,  the  estate  is  divided  equally  amongst  them  all. 
Illegitimate  children  may  inherit  from  their  mothers 
alone,  unless  by  adoption,  according  to  rules  prescribed 
for  such  proceedings,  they  are  legitimized  by  the  father. 
This  is  not  the  place  to  give  the  rules  of  descent  as 
they  prevail  in  all  the  states.  It  is  believed,  however, 
that  the  following  are  of  general  application.  Where 
heirs  take  by  descent,  they  take  as  tenants  in  common. 
Posthumous  children  may  inherit.  Bastards  may  inherit 
from  and  transmit  inheritance  to  the  mother.  Children 
born  before  marriage  and  acknowledged  after  are  legiti- 
mate and  may  inherit.  Males  are  not  preferred  to 
females. 

§  401.  Title  by  devise. — Title  by  devise  is  where 
the  ownership  of  land  is  transferred  by  will.  Such  a 
transfer  of  land  is  called  a  devise.     The  person  who  takes 


246  ELEMENTARY    EAW  [§  402 

it  is  a  devisee.  The  person  who  dies  and  leaves  a  will  is 
a  testator,  and  the  person  named  in  the  will  and  charged 
with  the  duty  of  carrying  out  its  provisions  is  an 
executor. 

§  402.  Wills. — Wills  are  of  great  antiquity,  and  it 
is  said  by  some  writers  that  it  is  impossible  to  find  evi- 
dence of  any  time  in  human  history  when  they  did  not 
exist  in  some  form,  though  Sir  Henry  Maine  maintains 
that  they  probably  did  not  exist  among  the  barbarians 
before  their  invasion  of  the  Roman  Empire.  He  further 
says  that  to  the  Romans  belongs  pre-eminently  the  credit 
of  inventing  the  modern  will,  the  institution  of  which, 
next  to  the  contract,  has  exercised  the  greatest  influence 
in  transforming  human  society. 

§  403.  Capacity  to  make  wills — Written  wills. — 
There  is  no  general  law  of  the  United  States  on  the 
subject  of  wills,  each  state  having  its  own  laws  as  they 
find  expression  in  the  decisions  of  the  state  courts,  or  in 
statutory  enactments.  Who  may  make  a  will  is  the  first 
question.  Generally  all  persons  of  full  age  and  sound 
mind  are  capable,  though  in  some  states  married  women 
are  deprived  of  the  right.  The  capacity  to  make  a  will 
must  exist  when  it  is  made,  and  subsequent  incapacity 
will  not  invalidate  it.  Whether  the  testator  possessed  the 
requisite  capacity  is  a  question  of  fact  for  the  jury;  the 
interpretation  of  the  will,  the  power  to  declare  its  mean- 
ing, is  for  the  court.  Ordinarily,  a  will  must  be  reduced 
to  writing  and  must  be  subscribed  by  the  testator  in  the 
presence  of  attesting  witnesses,  who  shall  also  subscribe 
the  same  in  the  testator's  presence  and  at  his  request. 
Nuncupative  or  verbal  wills  may  be  made  by  which  per- 
sonal property  can  be  disposed  of.  and  the  manner  of 
making  and  proving  such  wills,  as  well  as  the  amount  of 


§  404]  TITLE  TO   REAL   PROPERTY,    HOW   ACQUIRED  247 

property  so  disposable,  is  controlled  by  statute.  After  a 
will  is  made,  it  is  common  for  the  testator  to  add  to  the 
original  will  certain  modifications  of  it.  These  must  be 
reduced  to  writing,  and  be  attested  in  like  manner  as  the 
original  will.     Such  modifications  are  called  codicils. 

§  404.  Revocation  of  wills. — A  will  may  be  revoked 
in  several  ways.  The  making  of  a  new  will  revokes  all 
prior  wills.  The  testator  may  revoke  his  will  by  mutilat- 
ing or  destroying  it  with  the  intent  to  revoke  it,  or  such 
mutilation  or  destruction  may  be  done  by  any  one  at  the 
request  of  the  testator.  The  subsequent  sale  of  land 
devised  by  a  will  revokes  the  will  as  to  that  land.  The 
testator  may  revoke  the  will  by  a  writing,  subscribed  and 
attested  like  a  will,  in  which  his  intention  to  revoke  it 
is  clearly  expressed.  A  will  is  sometimes  revoked  by 
operation  of  law,  as  when  a  child,  unprovided  for  in  the 
will,  is  subsequently  born. 

Wills  relating  to  land  must  be  executed  and  attested 
according  to  the  forms  required  by  the  law  of  the  place 
where  the  land  lies.  Wills  disposing  of  personal  property 
must  be  executed  according  to  the  laws  of  the  place  where 
the  testator  resided  at  the  time  of  his  death.  The  provi- 
sions of  wills  executed  and  proved  in  a  foreign  country 
or  another  state  may  be  enforced  wherever  property  is 
found  belonging  to  the  testator,  and  disposed  of  by  the 
will,  upon  producing  and  placing  of  record  a  copy  of 
the  will  and  a  duly  certified  copy  of  the  proceedings  by 
which  the  will  was  admitted  to  probate.  The  methods 
of  proving  and  enforcing  the  provisions  of  such  wills 
are  regulated  by  statute. 

A  will  may  be  set  aside  in  a  suit  brought  for  that 
purpose  by  any  party  in  interest,  when  it  is  proved  that 
the  will  was  unduly  executed,  that  its  execution  was  pro- 


248  e;i<e;me;ntary  law  [§  405 

cured   by    fraud   or   duress,   or   that   the   testator   did    not 
possess  the  legal  capacity  to  make  a  will. 

§  405.  Title  by  purchase. — The  cumbersome  meth- 
ods of  transferring  title  to  real  estate  which  were  cus- 
tomary under  the  common  law  of  England  have  never 
prevailed  in  this  country,  though  in  some  localities  there 
are  useless  intricacies  and  mysteries.  Since  real  estate 
has  become  a  commodity,  and  has  lost  in  public  estima- 
tion much  of  that  fictitious  dignity  with  which  it  was 
clothed  by  the  common  law,  the  forms  of  buying  and 
selling  and  conveying  it  have  been  much  simplified. 
Title  bonds,  quitclaim  and  warranty  deeds  are  about  the 
only  instruments  necessary  to  carry  out  the  intention  of 
the  parties.  A  title  bond  is  an  agreement  signed  by  the 
seller  agreeing  to  convey  to  the  buyer,  for  a  stipulated 
price  to  be  paid,  certain  land  described  in  the  instrument. 
A  quitclaim  deed  is  a  form  of  conveyance  in  which  the 
grantor  conveys  to  the  grantee,  his  heirs  and  assigns, 
all  the  grantor's  present  interest  in  land.  A  warranty 
deed  is  a  form  of  conveyance  by  which  the  grantor  con- 
veys land  to  the  grantee,  his  heirs  and  assigns,  with  an 
agreement  expressed  in  the  deed  that  the  grantor  will 
warrant  and  defend  the  title  against  all  persons,  and 
against  all  incumbrances.  The  form  may  be  varied  when 
the  warranty  is  not  general,  but  special,  and  where  cer- 
tain incumbrances  are  assumed  by  the  grantee.  By  spe- 
cial clauses  incorporated  in  the  deed  the  exact  meaning 
of  the  parties  as  to  what  interest  is  conveyed  and  what 
liens  are  assumed  may  be  expressed.  To  make  a  deed  ef- 
fective to  pass  title,  it  must  be  executed  in  due  form  and 
be  delivered  to  the  grantee,  or  to  some  one  for  him.  To 
make  the  delivery  efiFective  the  grantor  must  relinquish 
all  control  over  the  instrument.  If,  after  it  is  executed, 
it  is  put  in  the  hands  of  a  third  person,  to  be  by  him 


§  408]  TITL,E  TO   REAL   PROPERTY,    HOW   ACQUIRED  249 

delivered  upon  the  performance  of  some  act  or  the  hap- 
pening of  some  contingency,  the  instrument  is,  until  the 
act  is  performed  or  the  contingency  happens,  an  escrow 
and  not  a  deed. 

§  406.  Title  bond. — The  title  bond,  as  we  have  seen, 
is  a  sale  of  land  with  an  agreement  to  convey.  It  must 
be  in  writing  because  by  the  statute  of  frauds  no  action 
can  be  maintained  on  an  agreement  for  the  sale  of  lands 
or  any  interest  therein,  unless  the  agreement,  or  some 
memorandum  thereof,  is  in  writing,  and  signed  by  the 
person  to  be  charged  thereby,  6r  by  some  one  authorized 
to  sign  it  for  him.  Such  a  bond  only  gives  an  equitable 
estate,  even  where  the  purchase-money  is  all  paid,  but 
a  court  of  equity  upon  proof  of  payment  will  compel  the 
seller  to  make  a  deed  according  to  his  agreement,  and 
the  same  relief  will  be  given  against  the  heirs  of  the 
seller. 

§  407.     Deeds    by    owners    not    in    possession. — At 

common  law  the  conveyance  of  land,  which  at  the  time 
of  the  conveyance  was  in  the  adverse  possession  of 
another,  was  void,  but  this  rule  of  the  common  law  has 
been  abrogated  by  the  laws  of  many  states,  although  in 
some  of  them  it  is  still  recognized.  The  reason  for  the 
rule  was  that  the  right  to  make  such  conveyances  tended  to 
encourage  litigation,  and  because,  as  Coke  says,  "under 
color  thereof  pretended  titles  might  be  granted  to  great 
men,  whereby  right  might  be  trodden  down  and  the 
weak  oppressed."  Conveyances  of  land  pending  suit  in- 
volving the  title  thereto  are  void,  except  in  states  where 
by  statutory  enactment  they  are  recognized  as  valid. 

§  408.  Forms  of  deeds. — What  form  is  necessary 
and  what  formalities  in  its  execution  are  requisite  to  give 


250  ELEMENTARY    LAW  [§  409 

validity  to  a  deed,  depend  upon  the  statutes  of  the  state 
where  the  land  lies. 

§  409.  Registration  of  deeds. — A  deed  after  its  exe- 
cution and  delivery  should  be  recorded  promptly.  A  delay 
in  recording  it  beyond  the  time  fixed  by  statute  will  make 
the  deed  void  as  to  subsequent  purchasers  in  good  faith 
without  notice  of  the  existence  of  the  unrecorded  deed. 
All  sales  of  interests  in  land,  except  leases  for  short 
terms  specified  by  statute,  must  be  in  writing  and  should 
be  recorded.  To  entitle  such  instruments  to  be  recorded, 
they  must  be  acknowledged  before  some  officer  authorized 
to  take  such  acknowledgment. 

§  410.  Parties  to  deeds. — The  parties  to  a  deed,  es- 
pecially the  grantors,  must  be  capable  under  the  law  of 
making  such  contracts.  If  it  is  intended  to  convey  the 
interest  of  the  husband  and  to  bar  the  wife's  right  of 
dower,  she  must  join  in  the  deed  with  her  husband,  and 
under  the  laws  of  some  of  the  states  she  must  be  exam- 
ined by  the  officer  taking  the  acknowledgment,  separate 
and  apart  from  her  husband,  to  see  that  her  uniting  in 
the  deed  is  her  free  and  voluntary  act.  A  husband  may 
execute  a  valid  conveyance  of  his  lands  without  his  wife 
joining  in  the  deed,  but  the  grantee  takes  subject  to  the 
wife's  right  of  dower,  and  if  she  survives  her  husband, 
she  can  have  her  dower  assigned  to  her  out  of  the  land. 
A  wife's  deed  of  her  own  land,  without  her  husband 
joining,  is,  in  most  states,  void. 

§411.  Deeds  by  officers. — Sheriffs,  master  commis- 
sioners and  others  appointed  by  the  court,  in  making 
deeds  should  strictly  jmrsue  the  statute  and  the  decrees 
of  the  court  authorizing  the  conveyance.  A  sheriff's  deed 
executed  according  to  law  need   not  be  submitted  to  the 


§  413]  TITLE  TO  REAIv  TROPERTY,    HOW   ACQUIRED  251 

court  for  its  approval,  but  commissioners,  guardians, 
executors  and  others  who  make  what  are  called  judicial 
sales,  should  report  them  to  the  court  with  a  form  of 
conveyance  for  the  approval  of  the  court.  Lands  are 
conveyed  by  auditors  or  other  officers  where  they  have 
been  sold  for  delinquent  taxes.  Titles  acquired  by  means 
of  tax  sales  are,  if  not  regarded  with  suspicion,  carefully 
scrutinized,  and  any  irregularity  in  the  levy  of  taxes  or 
sale  will  vitiate  the  deed. 

§  412.  Description  of  land  conveyed. — The  land 
should  be  so  described  in  a  deed  or  agreement  for  sale 
that  a  stranger,  without  the  aid  of  outside  evidence,  can 
go  upon  the  premises  and  identify  it.  In  states  where 
the  public  lands  have  been  surveyed  in  sections  and  sec- 
tional subdivisions,  it  is  sufficient  to  describe  the  land  as 

being  section  No.  — ,  township  — ,  range  — ,   in  

county  and  state.     Where  the   land   is   described 

by  metes  and  bounds  the  lines,  courses,  corners  and 
distances  should  be  accurately  followed. 

§  413.  Title  by  eminent  domain. — All  private  own- 
ership of  land  is  held  subject  to  the  state  in  which  it  lies, 
and  there  resides  in  the  state  the  power  to  resume  pos- 
session and  ownership  of  it,  whenever  the  public  good 
requires  it.  This  power  has  its  limits  fixed  by  the  Con- 
stitutions of  the  United  States  and  of  the  several  states, 
which  provide  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation.  Where  it  is  desired 
to  appropriate  land  for  the  purpose  of  establishing  navy 
yards,  arsenals,  or  for  sites  for  post  office  buildings, 
custom-houses  and  the  like,  the  government,  if  it  can  not 
secure  desirable  property  by  purchase,  institutes  by  its 
proper  officers  proceedings  in  the  proper  courts  within 
whose  jurisdiction  the  land  lies,  to  have  the  value  of  the 


252  e;i.e;mentary  law  [§  413 

land  ascertained.  Upon  payment  of  the  amount  so  ascer- 
tained, the  title  vests  in  the  government.  This  right  to 
appropriate  private  property  for  the  pubhc  use  is  called 
the  right  of  eminent  domain. 

This  right  of  eminent  domain  is  exercised  in  another 
way  when  private  individuals  for  their  own  profit  embark 
in  enterprises  which  perform  some  public  service.  It  can 
only  be  exercised  where  the  property  is  taken  for  a  public 
use,  and  where  the  property  condemned  is  necessary  to 
enable  the  public  use  to  be  carried  into  effect.  It  is  also 
a  condition  that  compensation  must  be  made  to  the  owner, 
and  it  is  generally  held  that  payment  must  be  made  before 
entry.  Cities  and  towns  take  property  for  streets  and 
parks;  railroad,  turnpike,  telegraph,  telephone,  canal, 
ferry,  gas,  water  and  irrigation  companies,  condemn  land 
for  right  of  way,  and  exercise  this  right  when  authorized 
to  do  so  by  the  legislature,  with  whom  rests  the  power 
to  determine  the  manner  in  which,  and  purposes  for 
which,  it  may  be  exercised. 

The  proceedings  by  which  property  may  be  taken  and 
appropriated  for  the  purposes  named  in  the  preceding 
section  are  regulated  by  statute,  and  in  this  matter  there 
is  substantial  uniformity  in  the  l-aws  of  the  several  states. 
The  corporation  desiring  to  exercise  the  right  may  file 
in  the  proper  court  an  instrument  of  appropriation,  setting 
forth  the  uses  to  which  the  property  is  to  be  devoted, 
giving  an  accurate  description  of  the  property  intended  to 
be  appropriated,  and  setting  out  the  names  of  the  owners 
and  persons  interested  in  it.  The  proceedings  may  be 
summary,  as  in  some  states,  where  the  law  does  not  give 
the  right  of  trial  by  jury,  or  they  may  be  in  tlie  form 
of  a  civil  action,  in  which  the  right  to  a  trial  by  jury  is 
given.  Proceedings  in  the  exercise  of  the  riglit  of  eminent 
domain  are  not  "suits  at  common  law,"   for  which  "the 


§  415]  title:   to   REAlv  rROPERTV,    HOW   ACQUIRED  253 

right  of  trial  by  jury  shall  be  preserved,"  as  required  by 
the  constitution.  In  either  case  the  jury  or  commission- 
ers selected  hear  evidence,  view  the  premises  and  report 
to  the  court  their  finding  as  to  the  amount  of  damages 
to  be  paid  to  the  landowners.  When  the  report  is  con- 
firmed by  the  court,  the  party  seeking  the  appropriation 
may  pay  the  money  into  court,  and  enter  upon  the  prop- 
erty. If  either  party  is  dissatisfied  with  the  report,  an 
appeal  may  usually  be  taken  from  the  award.  As  the 
proceedings  are  purely  statutory,  the  provisions  of  the 
statute  regulating  them  must  be  strictly  followed.  Judg- 
ments in  such  cases  have  the  same  binding  effect  as  ordi- 
nary judgments,  and  they  can  not  be  collaterally  im- 
peached. 

§  414.  Title  by  escheat. — Where  a  person  died  in- 
testate in  England  without  lawful  heirs  the  title  to  his 
real  property  went  back  to  the  original  grantor,  or  lord 
of  the  fee,  from  whom  it  proceeded.  In  this  country 
when  a  man  dies  intestate  and  without  heirs,  the  title 
to  his  real  property  reverts  or  escheats  to  the  people,  as 
forming  a  part  of  the  common  stock  of  the  community, 
it  being  a  fundamental  principle  that,  if  the  ownership  of 
property  becomes  vacant,  the  right  must  necessarily  sub- 
side into  the  whole  community  in  whom  it  was  vested  at 
the  origin  of  society.  This  rule,  which  formerly  applied 
to  real  property  only,  is  extended  by  the  laws  of  most  of 
the  states  to  personal  property. 

§415.  Title  by  forfeiture. — Title  by  forfeiture  is 
a  title  which  the  state  acquires  to  the  property  of  a  felon 
who,  with  his  heirs,  devisees  and  legatees,  are  deprived 
of  it  on  account  of,  and  as  a  punishment  for,  high 
crimes.     Such  forfeitures  are  by  the  constitutions  of  many 


254  ELEMENTARY    LAW  [§  ^15 

states  prohibited.  Conditional  estates  in  chattels  and  real 
property  may  be  forfeited  by  breach  of  conditions,  and 
the  misuse  of  a  chattel  by  a  person  having  a  qualified 
interest  therein  will  sometimes  determine  his  estate  in 
favor  of  the  absolute  owner. 


CHAPTER  XXIX 

PERSONAL   PROPERTY 

Sec.  Sec. 

416.  Definitron.  418.     Burial  rights. 

417.  Title  to — How  acquired. 

§  416.  Definition. — Personal  property  embraces  all 
objects  and  rights  which  are  capable  of  ownership,  except 
real  estate  or  some  interest  therein. 

§417.  Title  to — How  acquired. — The  title  to  per- 
sonal property  may  be  acquired  in  various  ways.  (1)  By 
occupancy,  as  where  one  finds  or  takes  possession  of  an 
article  which  has  no  owner  or  which  has  been  abandoned, 
or  where  one  captures  wild  animals,  or  fish,  or  finds  a 
jewel  to  which  no  one  claims  title.  (2)  By  increase  or 
accession,  as  where  one  owns  animals  who  have  young. 
(3)  By  confusion,  as  where  one  has  goods  or  property, 
like  wheat,  and  some  one  wrongfully  mixes  his  property 
of  the  same  kind  with  it,  so  that  it  can  not  be  distin- 
guished and  separated.  (4)  By  gift,  as  where  the  owner 
of  an  article  delivers  it  to  one  with  the  intent  to  pass 
the  title  to  the  donee.  (5)  By  a  written  transfer  describ- 
ing the  property  and  the  person  to  whom  it  is  transferred. 
(6)  By  sale  of  the  owner,  with  or  without  delivery  of 
possession.  (7)  By  succession  or  descent  from  one  who 
dies  intestate.  (8)  By  bequest  contained  in  a  will.  (9) 
By  operation  of  law  or  judgment,  as  where  one  is  sued 
for  the  conversion  of  another's  property  and  judgment  is 
rendered  against  the  defendant  for  its  value;  in  such 
cases,  upon  payment  or  satisfaction  of  the   judgment   so 

265 


256  E;i,E:MENTARy    LAW  [§  418 

rendered  the  title  to  the  property  vests  in  the  defendant. 
So  the  title  to  the  personal  property  of  one  dying  testate 
or  intestate  vests  in  the  executor  or  administrator  by 
mere  force  of  law.  So  a  qualified  title  to  the  personal 
property  of  a  ward  vests  in  the  guardian,  and  the  as- 
signee of  a  bankrupt  and  a  receiver  appointed  by  the  court 
have  a  title  to  the  goods  which  come  to  their  possession 
in  the  administration  of  these  trusts.  (10)  Title  to  per- 
sonal property  may  be  acquired  also  by  purchase  at  a 
sale  by  an  executor,  administrator,  guardian,  assignee  in 
bankruptcy,  trustee,  sheriff  or  other  officer  who,  by 
law  or  the  decree  of  a  court,  has  authority  to  make 
such  sale. 

§  418.  Burial  rights. — At  common  law  there  could 
be  no  ownership  of  the  bodies  of  the  dead,  but  in  some 
states  the  law  has  been  modified  and  some  of  the  rules 
of  property  have  been  applied.  In  such  states  the  bodies 
belong  to  the  surviving  relatives  in  the  order  of  inher- 
itance, and  they  have  the  right  to  control  the  disposition 
thereof.  There  would  be  a  right  of  action  against  one 
who  robs  the  grave  or  desecrates  the  body.  The  real 
injury  in  such  case  would  not  be  to  the  grave  or  body, 
but  to  the  feelings  of  the  survivors,  and  the  law  recog- 
nizes such  injury  as  a  legitimate  basis  for  recovery  of 
damages. 


CHAPTER  XXX 

DECEDENTS'   ESTATES 

Sec.  Sec. 

419.  Testator  and  intestate.  421.     Administrator. 

420.  Statutes     of    descent    and       422.     Executor. 

distribution. 

§  419.  Testator  and  intestate. — A  person  dying 
without  making  a  will  is  called  an  intestate,  and  one 
who  makes  and  leaves  a  will  is  called  a  testator. 

§  420,  Statutes  of  descent  and  distribution. — The 
personal  property  of  an  intestate  is  distributed  to  his 
heirs,  according  to  the  statutes  of  the  states  where  the 
intestate  lived  at  the  time  of  his  death,  and  his  real 
estate  descends  to  his  heirs,  according  to  the  laws  of 
the  place  where  the  real  estate  was   situated. 

§  421.  Administrator. — Upon  the  death  of  an  in- 
testate, an  administrator  is  appointed,  whose  duty  it  is  to 
take  possession  of  all  the  personal  property,  convert  it 
into  money,  pay  the  debts,  and  to  distribute  what  remains 
amongst  the  heirs.  The  administrator  has  no  right  to 
meddle  with  the  real  estate  of  the  decedent,  unless  the 
proceeds  of  the  personal  estate  should  prove  insufficient 
to  discharge  the  debts,  in  which  case,  upon  proper  applica- 
tion to  the  court  having  probate  jurisdiction,  he  will  be 
authorized  to  sell  under  the  direction  of  the  court  so 
much  of  the  real  estate  as  will  discharge  the  debts.  The 
right  to  administer  is  generally  first  in  the  surviving 
husband  or  wife,  next  in  the  children,  according  to  age 
and  capacity,  next  to  the  largest  creditor,  and  if  none 
of  them  desire  to  accept  the  trust,  the  court  will  appoint 
17— Elem.  Law.  257 


258  ELKMENTARY    LAW  [§  422 

some  competent  person.  When  appointed,  the  administra- 
tor is  required  to  take  an  oath  and  give  a  bond  for  the 
faithful  performance  of  the  duties  of  his  trust.  He  is  at 
all  times  under  the  direction  and  control  of  the  court,  to 
whom  he  is  required  to  report  all  his  doings  in  the  man- 
agement of  the  property  which  comes  to  his  hands. 
When  he  is  ready  to  close  the  estate,  he  files  his  final 
accounts,  and  if  no  objections  are  made  by  the  parties 
in  interest,  he  is  discharged.  If  an  administrator  dies,  re- 
signs or  is  removed,  the  court  appoints  a  successor,  who 
is  called  an  administrator  de  bonis  non,  and  his  duty  is, 
as  the  name  implies,  to  administer  so  much  of  the  estate 
as  was  left  unsettled  by  his  predecessor.  The  authority 
issued  by  the  court  under  its  seal  to  an  administrator  is 
called  letters  of  administration. 

§  422.  Executor. — An  executor  named  in  a  will  is 
the  person  appointed  by  the  testator  to  carry  out  his  pur- 
pose as  expressed  in  the  will.  It  is  usual  for  the  executor 
to  give  bond  and  take  an  oath,  though  the  giving  of  the 
bond  is  sometimes  dispensed  with  where  the  testator  in 
his  will  indicates  a  desire  to  tliat  effect,  and  no  objection 
is  made  by  the  parties  in  interest.  The  authority  issued 
to  an  executor  is  called  letters  testamentary.  It  is  the 
duty  of  the  executor  to  carry  out  the  wishes  of  the 
testator  in  the  distribution  of  such  articles  of  personal 
property  as  are  disposed  of  by  the  will.  The  gift  of  per- 
sonal property  by  will  is  termed  a  bequest  or  legacy,  and 
the  person  to  whom  it  is  given  is  called  a  legatee ;  the 
gift  of  real  property  by  will  is  termed  a  devise  and  the 
person  receiving  it  is  termed  a  devisee.  If  the  executor 
has  cause  to  fear  that  the  property  of  the  testator  will 
not  be  sufficient  to  discharge  the  debts  of  the  estate  and 
to  pay  the  legacies,  he  may  require  the  legatee  to  give 
bond  that,   in  case  such  def7ciency  should   occur,   he  will 


§  422]  decedents'  estates  259 

refund  to  the  estate  so  much  as  may  be  necessary  to  pay 
his  share  of  such  deficiency.  The  devisees  take  the  real 
estate  according  to  tlie  terms  of  the  will  as  soon  as  the 
will  is  admitted  to  probate,  subject  to  the  debts  remain- 
ing after  the  personal  estate  is  exhausted.  The  executor, 
as  the  administrator,  does  not  meddle  with  the  real  estate 
of  the  testator  unless  it  is  shown  to  the  court  that  it  is 
necessary  to  sell  a  portion  of  it  to  pay  debts.  The 
reports  and  accounts  of  the  executor  are  made  and  dis- 
posed of  in  the  same  way  as  the  reports  and  accounts 
of  the  administrator.  If  the  person  named  as  executor 
renounces  the  trust  the  court  appoints  an  administrator 
as  in  the  case  of  an  intestate,  and  the  administrator  is 
called  administrator  with  the  will  annexed,  and  if  this 
administrator  dies,  resigns  or  is  removed,  a  successor  is 
appointed  who  is  called  an  administrator  de  bonis  non 
with  the  will  annexed.  Executors  and  administrators  re- 
ceive such  compensation  as  the  court  may  allow,  or  as 
may  be  provided  for  in  the  will. 


PART  V 


THE  LAW  OF  CONTRACTS 
CHAPTER  XXXI 

DEFINITION,    CLASSIFICATION   AND   VALIDITY    OF 

CONTRACTS 


Sec. 

Sec, 

423. 

The  law  of  contracts. 

435. 

424. 

Growth    of   right    to    con- 

tract. 

436. 

425. 

Contract  defined. 

426. 

Contracts     are     executory 
or  executed. 

437. 

427. 

Written  contracts. 

438. 

428. 

Parol  contracts. 

429. 

Express  contracts. 

430. 

Implied  contracts. 

439. 

43L 

Quasi   contracts. 

432. 

Contracts  of  record. 

440. 

433. 

Offer  and  acceptance. 

434. 

Time  of  contract. 

Legality  of  object  of  con- 
tract. 

Reality  of  consent — Mis- 
take. 

Reality  of  consent — Fraud 
and      misrepresentation. 

Reality  of  consent — Du- 
ress and  undue  influ- 
ence. 

Void  and  voidable  con- 
tracts. 

Interpretation  of  con- 
tracts. 


§  423.  The  law  of  contracts. — This  branch  of  the 
law  is  concerned  with  the  formation,  operation,  interpreta- 
tion and  discharge  of  contracts.  So  much  of  our  modern 
economic  life  is  dependent  upon  contractual  obligations 
that  it  has  become  necessary  to  give  them  a  definite  legal 
status  in  order  to  make  possible  their  consistent  enforce- 
ment through  the  courts  of  the  state.  In  making  con- 
tracts individuals  do  not  always  contemplate  all  the  pos- 
sible emergencies  nor  do  they  always  have  the  same  con- 
ception as  to  the  meaning  of  all  the  terms  of  the  agree- 

260 


§  424]  DEFINITION    AND   VALIDITY   OF   CONTRACTS  261 

ment.  In  enforcing  them,  therefore,  the  courts  must  lay 
down  rules  to  meet  such  emergencies.  For  example,  A 
contracts  with  B  for  the  rent  of  his  house  for  the  month 
of  July,  the  contract  being  made  June  fifteenth.  On  June 
thirtieth  the  house  burns  down,  an  emergency  probably 
not  contemplated  by  the  parties.  Can  A  sue  B  for  failure 
to  rent  the  house?  If  contracts  are  to  be  made  an  efficient 
instrument  of  modern  industry  and  commerce,  the 
courts  must  adopt  rules  that  will  provide  a  definite  and 
uniform  solution  for  this  and  similar  problems. 

Again  there  are  certain  contracts  which  under  an 
enlightened  policy  of  justice  and  fairness  ought  not  to  be 
enforced,  as  contracts  secured  by  fraud  or  duress,  and 
consequently  rules  must  be  laid  down  so  governing  the 
subject  of  contracts  as  to  prevent  them  from  being  made 
instruments  of  fraud  and  oppression. 

§  424.  Growth  of  right  to  contract. — In  primitive 
societies,  and  under  the  ancient  laws,  the  rights  and 
liabilities  of  persons,  so  far  as  they  had  rights  and 
liabilities,  were  largely  fixed  and  determined  by  their 
stations  in  life,  whether  as  lord  or  vassal,  husband  or 
wife,  parent  or  child,  master  or  slave.  The  individual, 
unless  he  were  lord,  master  or  head  of  a  family,  had  little 
or  no  voice  in  fixing  his  rights  and  obligations.  Status, 
a  word  which  is  used  to  designate  the  personal  condition 
of  the  individual  under  these  old  laws,  has  been  gradual- 
ly succeeded  and  almost  supplanted  by  conditions  which 
are  the  immediate  or  remote  result  of  agreement,  and  the 
great  movement  of  the  progress  in  society  has  been  a 
movement  from  status  to  contract.  Societies  are  civilized 
and  progressive  to  the  extent  that  the  individual  can  for 
himself  establish  such  relations  as  he  chooses,  work  for 
whom  he  pleases,  and  for.  what  he  pleases,  buy  and  sell 
what   and   where   he   can,   having   no   superior   to   control 


262  ELEMENTARY    I,AW  [§  425 

bis  will  or  direct  his  action,  except  so  far  as  the  necessary 
restraints  of  public  law   impose  limits  upon  such  action. 

A  large  portion  of  the  field  of  jurisprudence  is 
devoted  to  the  subject  of  contracts.  Contracts  from  their 
very  nature  imply  that  men  are  disposed  in  good  faith 
to  keep  agreements  which  they  have  entered  into  volun- 
tarily. And  the  multiplication  of  the  different  forms  of 
contract  indicates  in  a  marked  manner  how  the  confidence 
and  faith  of  man  in  his  fellow  man  have  increased. 
Society  is  shocked  by  the  great  frauds  which  are  some- 
times perpetrated  by  cunning  and  powerful  men,  but  the 
great  current  of  commercial  and  business  life  is  pure. 
Men  as  a  rule  are  faithful  in  the  performance  of  their 
agreements.  Where  men  from  an  honest  misunderstand- 
ing as  to  their  rights  under  their  contracts  or  from  a 
dishonest  motive  to  evade  them  disagree,  the  aid  of  the 
law  is  invoked  to  settle  the  controversy.  Some  idea  of  the 
immense  stride  society  has  made  may  be  formed  from  the 
language  of  Sir  Henry  Maine,  who  says,  "The  only  form 
of  dishonesty  treated  of  in  the  most  ancient  Roman  law  is 
theft.  At  the  moment  at  which  I  write  (1861)  the  new- 
est chapter  in  the  English  criminal  law  is  one  which  at- 
tempts to  prescribe  punishment  for  the  frauds  of 
trustees." 

The  whole  of  our  modern  economic  life  is  based 
upon  contractual  obligations.  The  commerce  of  the 
seas,  the  division  of  labor  necessary  to  industrial  effici- 
ency, in  fact  the  whole  fabric  of  the  world's  business  is 
grounded  upon  the  binding  obligations  of  legal  agree- 
ments. 

§  425.  Contract  defined. — First,  what  constitutes  a 
contract?  Blackstone's  definition  is  as  follows:  "A  con- 
tract is  an  agreement  upon  sufficient  consideration  to  do 
or   not   to   do   a   particular   thing,"   which   is   concise   and 


§  427]  DEFINITION   AND  VALIDITY  OF   CONTRACTS  263 

comprehensive.  Judge  Metcalf  preferred  the  definition 
of  Chief  Justice  Marshall,  as  it  is  given  in  Sttirges  v. 
Crowningshield,  4  Wheat.  (U.  S.')  197.  It  is  in  these 
words :  "A  contract  is  an  agreement  in  which  ~a  party 
undertakes  to  do  or  not  to  do  a  particular  thing."  In 
this  definition  the  element  of  consideration  is  omitted. 
The  efforts  to  improve  upon  these  definitions  by  later 
learned  writers  show  a  great  deal  of  ingenuity  and  a 
large  command  of  words,  but  it  is  questionable  whether 
their  efforts  to  make  things  clear  have  not  tended  rather 
to  darken  counsel.  For  the  student  who  is  trying  to 
master  the  elementary  principles  of  the  law,  the  defini- 
tions of  Blackstone  and  Marshall  will  be  quite  sufficient. 
Chancellor  Kent  approved  Blackstone's  definition  sub- 
stantially as  we  have  given  it. 

§  426.     Contracts    are    executory    or    executed. — A 

contract  to  do  a  thing,  followed  by  immediate  perform- 
ance, is  executed;  a  contract  to  do  something  in  the 
future  where  instant  performance  is  not  expected  is 
executory.  If  one  fails  to  perform  an  executory  con- 
tract, performance  may  be  enforced  or  damages  given  to 
the   injured  party   for  nonperformance. 

§  427.  Written  contracts. — A  written  contract  is  an 
instrument  fixing  the  rights  and  obligations  of  the  con- 
tracting parties,  concerning  the  subject-matter  of  the  con- 
tract, and  signed  by  them  or  one  of  them.  It  is  suffici- 
ent if  it  be  signed  by  one  and  accepted  by  the  other. 
The  party  accepting  a  written  agreement  is  bound  by  all 
its  stipulations  for  and  against  him.  For  instance,  where 
a  deed  is  delivered  by  the  grantor  and  accepted  by  the 
grantee,  the  grantee  does  not  sign  the  deed,  but  if  it 
contains  covenants  which  are  to  be  performed  by  him, 
as  for  the  payment  of  an  encumbrance  or  the  like,  he  is 


264  ELEMENTARY    LAW  [§  428 

bound  to  perform  the  covenant  as  much  as  if  he  had 
signed  the  deed.  A  written  contract  may  consist  of  let- 
ters or  telegrams.  It  may  be  written  upon  several  papers 
at  the  same  time,  and  if  these  several  papers  relate  to  the 
subject-matter  of  the  agreement  they  will  be  taken  as  a 
part  of  it. 

§  428.  Parol  contracts. — A  parol  contract  is  where 
the  agreement  of  the  parties  rests  in  spoken  words  only, 
or  partly  in  writing  and  partly  in  spoken  words.  Parol 
contracts  are  valid  and  enforcible,  except  where  by 
express  law  they  are  required  to  be  in  writing.  By  the 
rules  of  common  law  all  contracts  not  under  seal  were 
called  simple  or  parol  contracts.  But  the  rules  which 
grave  a  hisfher  dignitv  to  contracts  under  seal  have  been 
virtually  abrogated  in  this  countiy  by  usage  and  by 
statutes.  In  most  of  the  states  the  use  of  seals  is  now 
regulated  by  statute,  the  effect  of  which  has  been  to 
modify  or  entirely  change  the  common-law  usage  in 
regrard  to  seals.  In  some  instances  the  distinction  between 
sealed  and  unsealed  instruments  is  done  away  with  in 
terms,  while  in  others  the  same  result  is  accomplished  by 
abolishing  the  use  of  seals  except  by  public  officials  and 
corporations. 

§  429.  Express  contracts. — An  express  contract  is 
one  in  which  the  meaning  is  stated  in  plain  words  which 
are  mutually  understood  by  the  parties  in  the  same  way. 

§  430.  Implied  contracts. — An  implied  contract  is 
one  in  which  the  conduct  of  the  parties  is  such  that  the 
jury  may  infer  that  the  parties  did'  intend  to  make  a 
contract.  Where  a  customer  takes  up  a  merchant's  goods 
there  is  an  implied  contract  on  the  part  of  the  customer 
to  pay  to  the  merchant  the  reasonable  value  of  the  goods. 


§  433]  DEFINITION  AND  VALIDITY  OF  CONTRACTS  265 

and  where  a  master  takes  a  servant  into  his  employ  there 
is  an  imphed  contract  on  the  part  of  the  employer  to 
pay  the  employe  the  reasonable  value  of  his  labor.  If 
parties  have  an  accounting,  and  have  agreed  upon  the 
balance  due,  there  is  an  implied  contract  that  the  debtor 
will  pay  the  balance.  So  there  is  an  implied  contract  by 
the  borrower  to  repay  borrowed  money. 

§431.  Quasi  contracts. — There  is  a  class  of  cases 
in  which  the  law  implies  a  contract  obligation,  regardless 
of  the  intention  of  the  parties.  Thus,  where  one  pro- 
cures the  goods  or  money  of  another,  through  fraud  or 
mistake,  the  law  implies  an  obligation  to  return  or  pay. 
These  are  sometimes  called  quasi  contracts. 

§  432.  Contracts  of  record. — Where  a  judgment  is 
entered  in  a  court  of  record,  it  is  called  a  contract  of 
record,  on  the  theory  that  every  man  agrees  to  obey  the 
laws  of  the  land,  and  where  he  is  adjudged  to  owe  a 
sum  of  money  by  the  law  there  is  an  implied  promise  on 
his  part  to  pay  it.  Where  a  man  appears  in  court,  and 
either  on  his  own  behalf  or  as  surety  for  another,  enters 
into  a  recognizance  conditioned  for  the  payment  of  a 
sum  of  money,  in  case  of  the  failure  of  himself  or  his 
principal  to  appear  in  court  at  a  time  named,  it  is  a 
contract  of  record.  Infants  may  enter  into  recognizances 
which  will  be  binding  on  them  and  their  estates. 

§  433.  Offer  and  acceptance. — Contracts  are  made 
through  some  form  of  offer  and  acceptance.  The  offer 
and  acceptance  may  be  spoken,  written  or  implied  from 
the  actions  of  the  parties.  An  offer  is  an  expression  of 
willingness  to  enter  into  an  agreement  according  to  the 
terms  indicated  by  the  offerer.  The  offer  may  be  made 
to  a  particular  person   in  which   case   that   person   alone 


266  ELEMENTARY    LAW  [§  434 

may  accept  it,  or  it  may  be  made  to  the  world  and 
accepted  by  any  one  who  can  comply  with  its  terms.  An 
offer  to  pay  ten  dollars  for  any  one  returning  a  certain 
lost  watch  is  an  offer  to  the  world  and  any  one  finding 
the  watch  and  returning  it  with  knowledge  of  the  offer 
has  accepted  it,  and  is  therefore  entitled  to  the  ten 
dollars.  Any  one  to  whom  an  oft'er  is  directed  and  who 
receives  the  offer  enters  into  a  binding  contract  by  accept- 
ing it.  The  acceptance,  however,  must  be  complete  and 
in  the  terms  of  the  offer.  Thus  if  A  offers  to  sell  to  B 
one  hundred  pounds  of  sugar  at  six  cents  per  pound  and 
B  says  that  he  will  take  fifty  pounds  of  sugar  at  six 
cents  per  pound,  there  is  no  contract  for  the  acceptance 
does  not  comply  with  the  terms  of  the  offer. 

An  offer  may  be  revoked  at  any  time  if  notice  of  the 
revocation  is  given  to  the  offeree  before  acceptance.  If 
an  offer  is  not  accepted  within  a  reasonable  time  it 
lapses  without  express  revocation.  Mental  determination 
to  accept  an  offer  is  not  sufficient  for  the  acceptance 
must  be  unequivocally  indicated,  either  by  express  words 
or  appropriate  action. 

The  offer  may  be  of  a  promise,  as  where  A  offers  to 
pay  B  a  certain  sum  of  money  in  ninety  days  if  B  will 
deliver  to  A  certain  chattels.  Or  the  offer  may  be  of  an 
act,  as  where  B  offers  to  deliver  to  A  certain  chattels  in 
return  for  the  promise  of  A  to  pay  certain  moneys  in 
ninety  days.  In  the  first  example  there  is  an  offer  of 
a  promise  to  be  accepted  by  an  act,  and  in  the  second 
case  there  is  an  offer  of  an  act  to  be  accepted  by  a 
promise.  There  may  also  be  an  offer  of  a  promise  to  be 
accepted  by  a  promise,  as  where  A  offers  to  promise  to 
pay  B  certain  moneys  in  ninety  days,  if  B  will  promise 
to  deliver  certain  chattels  in  sixty  days. 

§  434.     Time  and  place  of  contract. — Questions  arise 


§  435]  DEFINITION  AND  VALIDITY  OF   CONTRACTS  267 

as  to  the  particular  time  and  place  that  the  agreement 
is  to  be  considered  as  closed,  and  the  rights  and  obliga- 
tions of  the  parties  fixed.  The  general  rule  is  that 
whenever  and  wherever  the  minds  of  the  parties  meet 
in  agreement  as  to  all  the  particulars  of  the  transaction, 
the  contract  is  made  and  binding.  The  contract  is  com- 
pleted by  the  acceptance  of  an  ofYer  and  the  time  and 
place  of  acceptance  is  the  time  and  place  of  the  contract. 
Where  a  letter  containing  an  offer  is  transmitted  by 
mail,  and  an  answer  accepting  the  offer  in  its  precise 
terms  is  mailed  also,  the  contract  is  closed  and  the 
rights  of  the  parties  fixed,  at  the  time  and  place  the 
letter  of  acceptance,  properly  stamped  and  addressed, 
is  deposited  in  the  post  of!ice. 

§  435.  Legality  of  object  of  contract. — Since  the 
courts  do  not  favor  illegal  or  immoral  acts  they  will  not 
enforce  contracts  which  are  prohibited  by  law  or  which 
contribute  to  specific  acts  prohibited  by  law,  but  will  hold 
them  null  and  void.  They  will  also  hold  void  contracts 
which  they  have  determined  to  be  contrary  to  public 
policy.  In  many  states  gambling  contracts  are  express- 
ly prohibited  by  law  and  consequently  the  courts  will 
determine  such  contracts  to  be  void.  Where  the  law 
prohibits  a  specific  act,  as  the  doing  of  business  on  Sun- 
day, and  one  contracts  with  another  to  publish  advertis- 
ing in  a  Sunday  paper,  the  contract  will  be  held  void  as 
contributing  to  an  illegal  end. 

There  are  many  examples  of  contracts  which  are  void 
as  being  contrary  to  public  policy.  Contracts  to  commit 
torts,  to  refrain  from  prosecuting  criminals,  to  influence 
legislation  by  lobbying,  to  interfere  with  the  freedom  or 
security  of  marriage,  to  restrain  unreasonably  trade  or 
competition,   or   to   engage   in   immoral   practices   are   all 


268  KLEMENTARY    LAW  [§  436 

examples  of  contracts  which  the  courts  have  held  to  be 
void  as  contrary  to  public  policy. 

§  436.  Reality  of  consent — Mistake. — In  all  con- 
tracts, there  must  be  an  agreement  of  the  minds  of  the 
parties  as  to  the  subject-matter  of  the  contract  and  as 
to  the  obligations  assumed  by  each  party.  If  there  is  a 
misunderstanding  as  to  the  thing  contracted  for,  or  as 
to  the  time  or  place  of  performance,  as  to  the  price  to  be 
paid,  or  any  other  essential  matter,  there  is  no  agreement, 
and  consequently  no  binding  contract.  Thus,  if  A,  hav- 
ing in  mind  one  of  several  horses  in  his  field,  says 
to  B,  who  has  in  mind  another  horse  in  the  same  field, 
"I  will  sell  you  the  horse  for  one  hundred  dollars,"  and 
B  says,  "I  will  take  it  at  that  price,"  there  is  no  con- 
tract, for  the  minds  of  the  parties  have  not  met  and 
agreed  upon  the  same  thing.  So,  if  A  says,  I  will  sell 
an  article,  naming  it,  for  one  hundred  and  sixty-five 
dollars,  and  B,  supposing  that  the  sum  named  was  only 
sixty-five  dollars,  agrees  to  pay  it,  it  is  plain  that  there 
is  no  agreement.  These  are  simple  forms  of  illustration, 
and  they  could  be  multiplied   indefinitely. 

§  437.  Reality  of  consent — Fraud  and  misrepresen- 
tation.— Where  a  person  is  induced  to  enter  into  a 
contract  through  fraud  there  is  then  lacking  that  reality 
of  consent  or  actual  agreement  of  the  minds  necessary 
to  a  binding  contract.  Such  contracts  are  voidable  and 
the  defrauded  party  may  take  his  choice  and  either  avoid 
the  contract  or  abide  by  the  contract  and  sue  the  wrong- 
doer for  damages  in  an  action  in  tort  for  deceit.  To 
establish  a  case  of  fraud  it  must  be  shown  that  there  was 
a  false  representation  of  fact,  made  with  a  knowledge  of 
its  falsity  or  with  a  reckless  disregard  of  whether  it  was 
false  or  true,  that  it  was  made  with  the  intent  that  it 
should  be  relied  on,   and  that   it  actually  did  induce  the 


§  438]        di;finition  and  validity  of  contracts  269 

other  party  to  act  upon  it  to  his  damage.  Thus  if  A 
induces  B  to  purchase  a  horse  from  him  through  his 
representations  that  the  horse  is  capable  of  certain  speed 
and  A  knows  that  such  is  not  the  case  and  consequently 
B  pays  more  than  the  horse  is  worth,  he  may  rescind  the 
contract  and  recover  back  his  money,  or  he  may  if  he 
prefers  keep  the  horse  and  sue  A  for  damages  for  the 
deceit. 

If,  however,  A  made  the  above  misrepresentation 
honestly  and  innocently,  then  B  has  no  relief  at  law, 
unless  the  representation  was  so  made  as  to  amount  to 
a  warranty  or  a  part  of  the  contract,  for  the  law  affords 
no  relief  in  the  case  of  mere  innocent  misrepresentation. 
In  such  cases,  however,  equity  will  afford  relief,  and 
innocent  misrepresentation  is  a  good  defense  to  an  action 
for  specific  performance.  In  case  the  innocent  misrepre- 
sentation is  so  made  as  to  make  it  a  part  of  the  contract 
or  a  warranty  then  an  action  for  damages  for  breach 
thereof  may  be  maintained  at  law. 

§  438.  Reali.ty  of  consent — Duress  and  undue  influ- 
ence.— Contracts  made  by  persons  under  duress  are 
not  binding.  Duress  exists  where  one  by  the  unlawful 
act  of  another  is  induced  to  make  a  contract  or  perform 
some  act  under  circumstances  which  deprive  him  of  the 
exercise  of  his  free  will.  There  may  be  duress  of  the 
person,  as  by  threats,  imprisonment,  or  an  exhibition  of 
apparently  irresistible  force,  or  of  the  goods,  where  one 
is  compelled  to  submit  to  an  illegal  exaction  to  obtain 
possession  of  them.  The  imprisonment  must  be  unlaw- 
ful in  itself,  or  if  lawful  it  must  be  enforced  in  a  cruel 
and  oppressive  manner.  The  threat  or  threats  must  be 
such  as  to  excite  fear  of  some  grievous  wrong,  and  such 
as  would  overcome  the  will  of  a  person  of  ordinary 
courage.     Where  a  contract   is  obtained  by  duress,   it   is 


270  EI^EMENTARY    LAW  [§  439 

incumbent  upon  the  person  who  wishes  to  avoid  the  con- 
tract on  that  account  to  proceed  without  delay.  If  after 
the  duress  he  does  any  act  in  ratification  of  the  contract, 
he  is  cut  off   from  his  defense. 

"Undue  influence  may  be  defined  as  an  undue  and 
unconscientious  use  of  power,  whereby  the  will  of  one 
of  the  contracting  parties  is  enthralled  by  the  other.  A 
presumption  of  undue  influence  or  of  fraud  will  common- 
ly arise  where  the  parties  stand  in  confidential  relations 
in  which  one  naturally  possesses  an  advantage  over  the 
other,  making  it  necessary  for  the  parties  seeking  to  hold 
the  benefit  of  the  contract  or  conveyance  to  show  perfect 
fairness  on  his  part  and  no  abuse  of  power."  Contracts 
and  conveyances  between  parent  and  child,  guardian  and 
ward,  and  husband  and  wife  are  cases  of  this  sort.  If 
the  contract  is  secured  through  undue  influence,  it  is 
voidable. 

§  439.  Void  and  voidable  contracts. — The  terms 
void  and  voidable  are  often  confused.  A  contract  is 
void  when  its  terms  are  so  uncertain  that  it  can  not  be 
enforced,  or  where  there  is  a  total  lack  of  capacity  in  one 
or  both  of  the  parties,  or  where  the  contract  is  illegal, 
being  in  contravention  of  some  positive  law  forbidding 
it;  to  these  are  to  be  added  contracts  to  refrain  from 
doing  what  the  law  requires,  contracts  which  are  impos- 
sible of  performance,  contracts  based  upon  an  immoral 
consideration,  and  contracts  contrary  to  public  policy. 
Contracts  legal  in  part  and  illegal  in  part  will  be  enforced 
as  to  the  legal  part  if  it  can  be  separated  from  the  illegal ; 
if  not,  the  whole  contract  is  void.  Voidable  contracts  are 
those  which  are  procured  by  fraud  or  duress,  or  those 
entered  into  by  persons  under  disability,  such  as  infants 
and  insane  persons.     Such  contracts  may  be  ratified,  but 


§  440]  DEFINITION   AND  VAUDITY   0I<    CONTRACTS  271 

contracts    which    are    absolutely    void    are    incapable    of 
ratification. 

§  440.  Interpretation  of  contracts. — Contracts  are 
to  be  interpreted  according  to  the  manifest  intention  of 
the  parties,  words  being  taken  in  their  popular  sense.  In 
construing  a  written  contract,  if  the  language  is  ambigu- 
ous, the  whole  instrument  is  to  be  considered  with  all  the 
circumstances  surrounding  the  parties  at  the  time  n 
was  made.  If  the  contract  is  expressed  in  such  vague 
and  doubtful  terms  that  the  intention  of  the  parties  can 
not  be  ascertained  from  reading  it,  it  is  void. 


CHAPTER  XXXII 

CAPACITY    OF    PARTIES    TO    CONTRACT 

Sec.  Sec. 

441.  Capacity  of  parties.  445.     Ratification  and  disaffirm- 

442.  Who  may  make  valid  con-  ance  by  infants. 

tracts.  446.     Fraud  of  infants. 

443.  Infants.  447.     Insane  persons. 

444.  Infant's   contracts   for       448.     Drunkenness. 

necessaries.  449.     Married  women. 

§  441.  Capacity  of  parties. — It  is  essential  to  the 
validity  of  a  contract  that  the  parties  should  have  the 
capacity  to  contract;  they  must  be  of  sound  mind,  of 
adequate  age  and  under  no  legal  disability.  The  follow- 
ing persons  are  incapacitated :  Insane  persons,  drunkards, 
infants,  persons  under  duress  and  alien  enemies  during 
war.  In  some  of  the  states  married  women  are  still 
incapacitated  from  making  contracts,  but  these  harsh  rules 
are  yielding  to  the  demands  of  an  enlightened  public 
opinion,  which  insists  upon  enlarging  the  sphere  of  a 
woman's  rights  and  increasing  her  control  over  her  own 
property. 

§  442.  V/ho  may  make  valid  contracts. — Generally, 
all  persons  and  corporations  not  disqualified  by  law  may 
make  valid  contracts.  And  even  infants  and  lunatics, 
who  are  under  a  general  disability  to  assume  obligations 
that  may  be  enforced  against  them,  may  become  bound  to 
pay  for  the  necessaries  of  life  which  may  be  supplied 
for  their  support.  Sovereign  states  may  enter  contracts, 
but  such  contracts  can  not  be  enforced  against  them  by 
suit    without    tlieir    consent.      Where    one    state    of    the 

272 


§  443]  CAPACITY    OF    PARTIES    TO    CONTRACT  273 

Union  has  a  claim  against  another  state,  it  may  sue 
upon  it  in  the  Supreme  Court  of  the  United  States, 
which  has  excKisive  jurisdiction  of  such  controversies. 
Foreign  states  may  make  contracts  and  enforce  them  by 
suit  in  our  courts.  So  ahens  residing  or  trading  here  have 
the  same  right  to  make  contracts  and  sue  upon  them  as 
citizens,  unless  the  right  is  restricted  by  treaty  stipula- 
tions between  their  government  and  ours;  in  some  states, 
however,  they  may  not  acquire  title  to  land.  An  alien 
enemy,  that  is,  a  citizen  of  a  nation  with  which  we  are 
at  war,  can  make  no  contract  or  acquire  any  rights  dur- 
ing war,  unless  by  treaty  between  the  belligerent  pow- 
ers the  right  is  given.  He  may  be  sued  on  existing  con- 
tracts, and  unless  a  contract  existing  at  the  time  of  the 
war  is  of  such  a  character  that  it  is  continuing  in  its 
nature  and  involves  intercourse  between  the  enemy 
countries,  war  will  not  destroy  it.  Where  persons  en- 
gaged in  certain  callings  are  required  to  have  a  license 
to  carry  on  their  avocations,  the  statutes  of  some  states 
make  their  contracts  void,  unless  they  have  such  license. 

§  443.  Infants. — An  infant  is  a  person  under  twen- 
ty-one years  of  age,  and  while  under  that  age  he  can 
make  no  binding  contract  except  in  the  following  cases, 
that  is:  (1)  For  necessaries.  (2)  Contracts  entered  into 
by  authority  of  law,  as  in  the  case  of  a  recognizance  in 
his  own  behalf.  (3)  Contracts  created  by  law,  as  where 
an  infant  marries  he  is  bound  to  support  his  wife.  His 
other  contracts  are  voidable;  that  is,  the  infant  may 
ratify,  perform  or  repudiate  them  at  his  option.  Ac- 
cording to  the  weight  of  authority  he  is  not  even  bound 
by  a  contract  under  which  he  has  received  something 
of  value  which  he  can  not  return.  AVhere  a  father  has 
emancipated  an  infant  by  relinquishing  his  custody  and 

refusing  to  maintain  him,  the   Infant  may  receive  his 
18 — Elem.  Law- 


274  ELEMENTARY    LAW  [§  444 

own  earnings,  but  it  does  not   enlarge  his  capacity  to 
make  contracts. 

§  444.  Infant's  contracts  for  necessaries. — What  are 
the  necessaries  for  the  payment  of  which  an  infant  may 
bind  himself  by  contract?  They  include  clothing,  food, 
medical  aid  and  education,  and  these  must  comport  in 
quantity  and  quality  with  the  infant's  station  in  life.  If 
he  have  a  wife  and  children  he  is  chargeable  with  neces- 
saries supplied  to  them.  An  infant  is  not  bound  by  the 
terms  of  his  contract  to  pay  for  necessaries  beyond  a 
reasonable  price  for  the  articles. 

If  an  infant  were  to  buy  a  thing,  not  being  a  neces- 
sary, he  could  not  be  compelled  to  pay  for  it,  but  hav- 
ing paid  for  it  he  could  not  keep  it  and  also  recover 
back  the  money.  If  he  has  put  money  into  a  partnership, 
and  has  performed  services  in  the  business,  he  can  not 
on  rescinding  the  agreement  get  back  his  money  and  pay 
for  his  labor,  too.  The  privilege  of  infancy  is  personal, 
and  can  only  be  pleaded  by  the  infant  himself;  except 
that  if  he  dies  or  becomes  insane,  his  heirs,  administra- 
tor or  guardian  may  avoid  his  contracts. 

§  445.     Ratification   and   disaffirmance   by   infants. — 

An  infant  may  disaffirm  his  contract  during  minority.  If 
he  retains  the  thing  contracted  for  after  he  arrives  at 
full  age,  it  is  a  ratification  of  the  contract.  So,  if  he 
conveys  land  after  his  majority,  which  he  purchased  dur- 
ing his  infancy,  it  is  an  affirmance.  And  if  he  has  con- 
veyed land  during  his  infancy,  and  in  his  majority  con- 
veys the  same  land  to  another,  the  latter  deed  disaffirms 
the  former.  Where  he  elects  to  disaffirm,  he  must  dis- 
affirm the  whole  contract.  There  can  be  no  ratification 
of  a  voidable  contract  during  infancy,  for  the  ratification 
would  be  voidable.     Retaining  after  he  arrives  at  majority 


§  447]       CAPACITY  OF  PARTIES  TO  CONTRACT         275 

eitlier  goods  or  land  purchased  during  his  infancy  makes 
the  contract  vaHd.  Some  states  by  their  statutes  require 
that  a  bincHng  ratification  of  a  contract  made  by  an 
infant  can  only  be  made  in  writing. 

§  446.  Fraud  of  infants. — If  an  infant  procures 
goods  of  a  tradesman  on  a  false  statement  that  he  was 
of  age  the  goods  can  be  reclaimed  on  the  ground  of 
fraud.  Sometimes  courts  of  equity  hold  an  infant  to  a 
contract  that  he  has  entered  into  under  a  false  pretense 
as  to  his  age.  "The  privilege  of  infancy  is  a  shield  for 
his  protection  and  is  not  to  be  used  as  a  weapon  of 
injustice." 

§  447.  Insane  persons. — As  a  rule,  the  contracts  of 
persons  of  unsound  mind  are  not  binding  upon  them. 
Unsoundness  of  mind,  as  here  considered,  is  such  a  lack 
of  mental  capacity  as  totally  unfits  one  for  the  care 
of  his  own  interests.  Of  persons  of  sound  mind  the  law 
takes  no  note  of  the  grades  of  mental  capacity  between 
the  highest  and  the  lowest.  When,  however,  from  disease 
or  any  other  cause  the  individual  is  or  has  become  of 
unsound  mind,  as  above  indicated,  he  will  not  be  held  to 
his  contracts,  and  those  who  deal  with  him  do  so  at  their 
peril.  One  who  has  been  put  under  guardianship  as  a 
person  of  unsound  mind  is  conclusively  presumed  to  be 
so,  and  his  estate  can  only  be  lawfully  dealt  with  by  his 
legally  appointed  guardian,  who  acts  for  him  under  the 
direction  of  the  court.  As  to  a  person  who  has  not  been 
adjudged  to  be  of  unsound  mind,  the  question  of  his 
mental  capacity,  when  it  is  in  issue,  is  to  be  tried  as  any 
other  question  of  fact,  the  presumption  in  such  cases 
being  that  every  person  is  sane  until  the  contrary  is 
shown.  It  is  not  necessary  here  to  go  into  a  discussion 
of  the   different    forms   of   insanity.     We   are   here   con- 


276  ELEMENTARY    LAW  [§  448 

cerned  only  with  that  class  of  persons  who  in  law  are 
considered  to  be  incapable  of  making  valid  contracts. 
Even  a  person  of  unsound  mind  may  in  exceptional  cases, 
as  an  infant  may,  make  binding  contracts,  that  is.  for 
necessaries  suitable  to  his  condition  in  life,  and  he  will 
be  held  to  his  contract  where  he  has  dealt  with  one  who 
in  good  faith  supposes  him  to  be  sane,  and  has  per- 
formed the  contract  by  paying  the  consideration  to  him, 
if  the  consideration  can  not  be  restored. 

§  448.  Drunkenness. — Where  a  person  is  so  drunk 
at  the  time  he  makes  a  contract  that  he  does  not  under- 
stand what  he  is  doing,  such  contract  is  voidable,  and 
may  be  repudiated  or  ratified  by  him  when  he  becomes 
sober.  The  same  exceptions  hold  good  here  as  in  the 
case  of  infants  and  persons  of  unsound  mind.  When  a 
man  gets  sober  he  can  not  hold  on  to  the  benefits  of  a 
contract  made  when  he  was  drunk,  and  repudiate  the 
contract  also.  A  drunken  man.  as  an  infant  and  lunatic, 
may  make  a  valid  contract  for  necessaries.  Slight  cir- 
cumstances will  be  sufficient  to  ratify  the  contract  of  a 
drunken  man.  A  delay  in  disaffirming  it  if  unreasonable, 
or  retaining  the  benefit  after  he  becomes  sober,  will  be 
a  suf^cient  ratification. 

§  449.  Married  women. — By  the  common  law  mar- 
ried women  could  not  make  valid  contracts.  The  exten- 
sion of  the  rights  of  women  in  most  of  the  states  of  the 
Union  has  practically  emancipated  them  from  the  re- 
straints of  the  common  law.  In  nearly  all  the  states 
they  have  the  control  and  management  of  their  separate 
estates,  and  as  to  such  matters  the  married  woman  is 
put  upon  an  equal  footing  with  an  unmarried  woman,  or 
with  her  husband.  Nearly  every  session  of  our  state 
legislatures  witnesses  some  innovation  upon  the  rules 


§  449]  CAPACITY   OF    PARTIJJS   TO    CONTRACT  277 

of  law  which  have  restrained  her  liberty  in  dealing  with 
her  property.  It  would  be  impossible  to  attempt  to 
state  here  the  extent  or  limitations  upon  the  powers 
of  married  women  in  the  matter  of  contracts.  To 
ascertain  what  these  are  recourse  must  be  had  to  the 
statute  laws  of  the  several  states. 


CHAPTER  XXXIII 


CONSIDERATION,    DISCHARGE    AND    REMEDIES 


Sec. 

Sec. 

450. 

Definition. 

456. 

451. 

Adequacy     of     considera- 

tion. 

457. 

452. 

Prior    obligation    as    con- 
sideration. 

458. 

453. 

Promise  to  release  debtor. 

459. 

454. 

Disputed  claims. 

460. 

455. 

Impossible       and       illegal 
consideration. 

Executed  and  executory- 
considerations. 

Past  consideration. 

Failure  and  want  of  con- 
sideration. 

Discharge  of  contracts. 

Remedies  for  breach  of 
contract. 


§  450.  Definition. — Consideration  is  something  es- 
teemed in  law  to  be  of  value,  in  exchange  for  which 
the  promise  in  a  contract  is  made.  A  promise  will  not 
be  enforced  by  the  courts  unless  it  is  given  in  return 
for  a  consideration.  Merely  gratuitous  promises  will  not 
be  enforced.  The  law  estimates  values  in  money,  and 
the  consideration  must  be  something  to  which  a  jury 
can  attach  a  pecuniary  value.  Natural  love  and  affection 
named  in  a  deed  as  a  consideration  will  make  the  con- 
veyance good,  but  a  promise  to  convey,  or  a  promise  to 
pay  money  in  consideration  of  natural  love  and  affection, 
is  not  binding.  As  between  the  original  parties  to  a 
negotiable  promissory  note,  or  bill  of  exchange,  a  con- 
sideration is  necessary,  but  if  the  note  or  bill  is  purchased 
in  good  faith,  before  it  is  due,  by  a  third  person,  he  can 
enforce  payment,  although  it  was  originally  given  without 
consideration. 

A  good  consideration  is  blood,  natural  affection  and 
the  like.  A  valuable  consideration  is  money,  or  some 
commodity,  or  marriage.     To-day  the  mere  doing  of  an 

278 


§  451]         CONSIDERATION,   DISCHARGE   AND   REMEDIES  279 

act  which  one  is  not  already  legally  bound  to  do  is  gen- 
erally considered  a  good  consideration  regardless  of  its 
value. 

One  who  takes  a  deed  based  upon  a  good  considera- 
tion only  takes  the  property  subject  to  the  rights  of 
creditors  who  may  be  injured  thereby.  A  man  may  give 
away  his  property  if  he  retains  sufficient  to  pay  his  exist- 
ing debts.  The  maxim  is  that  "a  man  must  be  just 
before  he  is  generous." 

A  mere  moral  obligation  imposed  by  a  sense  of  duty 
will  not  make  a  promise  binding.  A  promise  to  pay 
money  to  another,  prompted  by  motives  of  gratitude  for 
past  favors,  is  not  binding.  But  a  moral  obligation,  sup- 
ported by  a  past  legal  obligation,  will  support  a  promise 
and  make  it  binding.  If  a  debt  is  barred  by  the  statute 
of  limitations,  or  by  a  discharge  in  bankruptcy,  and  the 
debtor  makes  a  new  promise  to  pay  it,  it  is  a  good  promise 
for  the  reason  that  though  there  is  no  present  legal  obliga- 
tion to  pay  there  is  a  moral  obligation,  and  when  the 
moral  obligation  rests  upon  what  was  a  previous  legal 
obligation,  it  is  a  valuable  consideration  and  will  support 
a  promise.  The  better  view,  however,  is  to  consider  the 
new  promise  as  a  mere  waiver  of  the  defense  of  the 
statute  of  limitations  or  the  discharge  in  bankruptcy,  and 
allow  the  plaintiff  to  recover  on  the  original  undertaking. 

§  451.  Adequacy  of  consideration. — The  adequacy 
of  consideration  is  something  that  courts  will  not  inquire 
into  except  in  cases  of  imposition  or  fraud.  Parties  capable 
of  contracting  are  left  to  make  their  own  bargains,  and 
their  mistaken  estimates  of  values  of  things  purchased  or 
received,  will  not  be  corrected.  Where  the  inadequacy  is 
so  gross  as  to  shock  the  moral  sense  it  will  be  proof  of 
fraud. 


280  ELEMENTARY    LAW  [§  452 

§  452.  Prior  obligation  as  consideration. — Where 
the  law  has  fixed  the  value  of  services  to  be  performed, 
as  by  naming  fees  for  official  services,  a  promise  to  pay 
more  is  not  binding.  So,  where  one  is  already  bound  by 
a  previous  agreement,  or  by  law  to  do  a  particular  thing, 
the  doing  of  the  act  is  no  consideration  for  a  binding 
promise.  If  one  owes  a  sum  of  money  and  pays  part,  and 
his  creditor  agrees  to  release  him  from  the  payment  of 
the  balance,  it  is  not  binding.  But  if  a  debtor  gives  his 
creditor  some  article  not  money,  though  of  less  value 
than  the  whole  amount,  and  it  is  accepted  for  the  whole 
debt,  it  is  a  good  discharge;  and  so  if  a  debtor  procures 
a  friend  to  pay  his  creditor  a  sum  less  than  the  whole 
debt,  such  payment  is  a  good  consideration  to  support  a 
promise  to  release  the  remainder.  And  a  payment  of  a 
sum  less  than  the  whole  debt  before  it  is  due  is  a  good 
consideration  to  support  a  release. 

§  453.  Promise  to  release  debtor. — Where  a  man 
is  embarrassed  and  his  creditors  mutually  agree  to  take 
a  portion  of  their  respective  debts  in  discharge  of  all, 
it  is  binding,  the  consideration  for  the  discharge  being 
the  mutual  promises  of  the  creditors  and  not  the  amounts 
of  money  they  receive. 

§  454.  Disputed  claims. — Where  there  is  a  dispute 
as  to  the  amount  due,  and  the  creditor  agrees  to  accept 
less  than  what  may  really  be  due  in  discharge  of  the 
whole,  it  is  good.  Where  a  man  makes  a  claim  against 
another  in  good  faith  and  threatens  to  bring  suit,  and 
money  is  agreed  to  be  paid  if  he  will  not  sue,  the  agree- 
ment is  binding;  but  if  the  threat  is  merely  to  extort 
blackmail,  and  the  claimant  does  not  in  good  faith  be- 
lieve he  has  a  just  claim,  such  agreement  can  not  be 
enforced.      The    consideration    promised    must    be    some- 


§  457]  CONSIDERATION,    DISCHARGE    AND    REMEDIES  281 

thing  beneficial  to  the  promisee  or  to  a  third  person,  or 
a  detriment  to  the  promisor.  A  simple  agreement  to 
extend  the  time  of  payment  is  not  binding,  unless  extra 
interest  is  agreed  to  be  paid,  or  interest  is  paid  in  advance 
or  something  of  value  given.  So,  if  one  agrees  to  carry 
goods  for  nothing  it  is  not  binding,  but  if  he  receives  the 
goods  after  making  such  a  promise,  he  must  carry  and 
deliver  them  safely.  Communicating  know^ledge,  and  the 
advice  of  a  lawyer  or  physician  are  sufficient  consider- 
ations. 

§  455.  Impossible  and  illegal  consideration. — An 
agreement  to  do  a  thing  absolutely  impossible  to  be  done 
is  no  consideration,  nor  will  an  agreement  based  upon 
an  illegal  or  immoral  consideration  be  binding.  Where, 
at  the  time  of  the  contract,  the  thing  contracted  for  is 
not  in  existence,  there  is  no  consideration,  as  when  two 
in  good  faith  bargain  for  the  purchase  and  sale  of  a 
horse,  supposing  it  to  be  alive,  when  in  fact  at  the  time 
of  the  agreement  it  is  dead. 

§  456.     Executed    and    executory    considerations. — 

The  consideration  is  executed  where  the  thing  agreed  for 
is  done  or  given,  and  it  is  executory  where  the  thing 
promised  remains  to  be  given  or  done.  If  one  is  em- 
ployed to  labor  for  a  sum  certain,  the  consideration  is 
executed  on  his  part  when  the  labor  is  performed,  and  it 
is  executory  on  the  part  of  his  employer  until  payment  is 
made. 

§  457.  Past  consideration. — The  consideration  must 
consist  of  a  present  or  future  act ;  a  past  act  can  not  serve 
as  a  consideration  for  a  promise.  This  rule  operates  very 
harshly  in  some  cases,  as  where  a  son  of  full  age  fell 
sick    and    was    cared    for    by    strangers,    who    paid    the 


282  ELEMENTARY    EAW  .[§458 

expenses  of  his  sickness,  it  was  held  that  a  subsequent 
promise  by  the  father  to  reimburse  them  could  not  be 
enforced.  It  is  now  established  law  that  the  past  per- 
formance of  services  constitutes  no  consideration  even 
for  an  express  promise,  unless  they  were  performed 
under  the  express  or  implied  request  of  the  defendant,  or 
unless  they  were  done  in  performance  of  some  duty  rest- 
ing on  him. 

§  458.  Failure  and  want  of  consideration. — A  con- 
tract may  be  based  on  a  consideration  apparently  good, 
but  which  fails  altogether,  in  which  event  the  contract 
will  not  be  enforced.  Thus,  where  a  promissory  note  is 
given  for  a  horse  warranted  to  be  sound,  which  turns 
out  to  have  been  diseased  and  worthless  at  the  time,  the 
maker  of  the  note  is  absolved  from  his  liability  to  pay  it, 
unless  it  is  a  negotiable'  note  in  the  hands  of  one  who 
purchased  it  in  good  faith  before  it  was  due.  Even  where 
money  is  paid  on  a  contract  supposed  to  be  valid,  if  the 
consideration  fails  the  money  may  be  recovered  back. 
If  there  is  no  warranty  of  the  things  sold,  or  if  the  de- 
fects complained  of  were  apparent,  failure  of  consider- 
ation can  not  be  pleaded.  Ordinarily,  in  a  sale  of  per- 
sonal property  the  seller  warrants  the  title,  but  if  at  the 
sale  it  is  clearly  stated  or  understood  that  the  seller  is 
simply  disposing  of  his  interest  in  the  thing  sold,  and 
the  title  fails,  it  is  no  failure  of  consideration,  for  the 
buyer  gets  all  he  bargained  for.  The  subsequent  deprecia- 
tion in  value  of  the  thing  sold,  as  when  by  new  inven- 
tions a  patent  is  made  worthless,  is  not  in  law  a  failure 
of  consideration. 

If  a  contract  is  based  upon  a  consideration  in  part 
legal  and  in  part  illegal,  it  will  be  enforced  as  to  the  legal 
part  if  it  can  be  separated,  but  if  no  separation  can  be 
made,  the  whole  contract  fails  for  want  of  consideration. 


§  459]  CONSIDERATION,    DISCHARGE    AND    REMEDIES  283 

A  party  to  a  contract,  having  full  knowledge  of  the 
facts,  may  waive  his  right  to  plead  a  want  or  failure  of 
consideration,  as  he  may  waive  his  right  to  plead  the 
statute  of  limitations,  his  discharge  in  bankruptcy,  his 
infancy  or  the  like. 

§  459.  Discharge  of  contracts. — Contracts  may  be 
discharged  either  by  agreement,  performance,  breach  or 
by  impossibility  of  performance.  Where  two  parties  enter 
into  an  agreement  they  may  subsequently  enter  into 
another  agreement  rescinding  the  first,  which  would  be 
an  example  of  a  discharge  by  agreement.  Discharge  by 
performance  takes  place  where  a  party  performs  his 
undertaking  in  accordance  with  the  terms  of  the  agree- 
ment and  is  thereby  discharged  from  all  liability.  Where 
a  party  to  a  contract  is  guilty  of  a  substantial  breach  of 
its  terms  or  declares  that  he  will  not  perform,  the  other 
party  is  discharged  from  further  performance.  If  the 
breach  only  concerns  a  mere  detail,  such  as  the  failure 
to  paint  the  cellar  door  in  the  erection  of  a  house,  the 
other  party  is  not  discharged  but  must  perform  his  part 
of  the  agreement,  although  he  will  be  allowed  damages 
for  the  unimportant  breach.  A  contract  is  discharged 
by  impossibility  of  performance  where  the  impossibility 
exists  at  the  time  of  the  making  of  the  contract,  or 
where  the  impossibility  is  subsequent  to  the  making  of 
the  contract  if  it  consists  in  the  destruction  of  the  subject- 
matter  of  the  contract,  or  in  the  death  or  disability  of 
one  of  the  parties  if  the  contract  involves  personal  ser- 
vice, or  where  the  impossibility  is  due  to  a  rule  of  law. 
A  contract  to  sell  a  certain  horse  is  discharged  if  the 
horse  dies  before  time  for  the  execution  of  the  sale,  or 
if  it  was  dead,  unknown  to  the  parties,  at  the  time  of 
the  sale.  A  contract  to  sing  at  a  theater  is  discharged 
by  the  singer's  inability  to  sing  through  sickness.     A  con- 


284  ELEMENTARY    LAW  [§  460 

tract  to  build  a  frame  building  is  discharged  if  a  subse- 
quent ordinance  makes  such  buildings  in  that  location 
unlawful. 

§  460.  Remedies  for  breach  of  contract. — Where  one 
of  the  parties  refuses  to  perform  or  otherwise  commits 
a  breach  of  contract,  the  other  party  is  generally  dis- 
charged from  further  performance  and  he  has  an  action 
for  damages  in  which  he  can  recover  what  he  has  lost 
through  the  other  party's  breach.  He  may,  however, 
choose  to  abandon  the  contract  and  sue  the  other  party 
for  a  reasonable  compensation  for  whatever  services  he 
has  already  performed.  In  certain  cases  coming  under 
the  jurisdiction  of  equity  the  injured  party  may  secure 
specific  performance.  Thus  if  A  has  contracted  to  con- 
vey to  B  a  certain  lot  and  then  refuses  to  convey,  B 
can  go  into  equity  and  get  a  decree  of  specific  perform- 
ance compelling  A  to  make  the  conveyance.  Equity  will 
only  give  relief,  however,  in  certain  classes  of  cases 
where  the  remedy  at  law  is  inadequate. 


461. 

History  of  the  statute. 

466. 

462. 

Provisions   of  the   statute. 

463. 

Promises  of  executors  and 
administrators. 

467. 

464. 

Debt,  default  and  miscar- 
riage. 

468. 

465. 

Original   or  collateral  ob- 

469. 

ligation. 

470. 

CHAPTER  XXXIV 

STATUTE  OF  FRAUDS 

Sec.  Sec. 

Agreements  in  considera- 
tion of  marriage. 

Contracts  for  sale  of 
lands. 

Agreements  not  to  be  per- 
formed within  a  year. 

The  note  or  memorandum. 

Signature  to  memoran- 
dum. 

§  461.  History  of  the  statute. — To  prevent  frauds 
and  perjuries,  a  statute  was  enacted  in  the  reign  of 
Charles  II  in  England,  in  the  year  1677,  providing  that 
no  action  should  be  brought  to  enforce  certain  agree- 
ments, "unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  note  or  memorandum  thereof, 
shall  be  in  writing  and  signed  by  the  party  to  be  charged 
therewith  or  some  other  person  thereunto  by  him  law- 
fully authorized."  It  is  to  be  noticed  that  by  this  statute 
parties  are  not  prohibited  from  making  such  agreements 
by  parol,  but  the  performance  of  such  parol  agreements 
is  purely  voluntary.  It  is  simply  declared  that  the  courts 
will  not  aid  in  enforcing  them.  There  is  some  curious 
history  as  to  who  is  entitled  to  the  credit  of  suggesting 
or  formulating  this  law.  Some  give  it  to  Lord  Hale, 
but  the  better  opinion  is  tliat  Lord  Nottingham  is  its 
author.  That  it  is  regarded  as  a  good  law  in  principle 
is  shown  by  the  fact  that  its  most  important  provisions 
have  been  re-enacted  in  all  English-speaking  countries, 
especially  the  fourth  and  seventeenth  sections  of  the 
statute. 

285 


286  i:i.eme;ntary  i,aw  [§  462 

§  462.  Provisions  of  the  statute. — The  fourth  sec- 
tion provides  that  no  action  shall  be  brought  whereby  to 
charge : 

( 1 )  Any  executor  or  administrator  upon  any  special 
promise  to  answer  damages  out  of  his  own  estate. 

(2)  Or  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default  or  miscarriage 
of  another  person. 

(3)  Or  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage. 

(4)  Or  upon  any  contract  or  sale  of  lands,  tenements 
or  hereditaments,  or  any  interest  in  or  concerning  them. 

(5)  Or  upon  any   agreement   that   is   not  to  be   per- 
formed  within  the   space   of   one  year    from  the  making  , 
thereof. 

Unless  the  agreement  or  some  memorandum  thereof 
in  writing  should  be  signed  as  above  required. 

The  seventeenth  section  provides  that  no  contract  for 
the  sale  of  any  goods,  wares  and  merchandise  for  the 
price  of  ten  pounds  sterling  (fifty  dollars)  or  upwards 
shall  be  allowed  to  be  good,  except  the  buyer  shall  accept 
part  of  the  goods  so  sold  and  actually  receive  the  same, 
or  give  something  in  earnest  to  bind  the  bargain,  or  in 
part  payment,  unless  some  note  or  memorandum  of  the 
bargain  in  writing  be  made  and  signed,  as  required  in 
the  fourth  section. 

Let  us  consider  the  contracts  affected  by  the  statute, 
in  the  order  in  which  they  are  mentioned  in  the  statute 
itself. 

§  463.  Promises  of  executors  and  administrators. — 
An  executor  or  an  administrator  coming  into  possession 
of  the  estate  of  the  testator  or  decedent  is  only  liable 
to  pay  the  debts  of  the  estate  in  the  order  required  by 
law  and  so   far  as  the  assets  of  the  estate  properly  ad- 


§  465J         ■     ■  STATUTE  OF  FRAUDS  287 

ministered  will  enable  him  to  discharge  such  debts.  This 
legal  obligation  and  no  other  rests  upon  him,  unless  he 
sees  fit  to  assume  and  incur  a  personal  liability  for  the 
debts  of  the  estate.  If  he  does  this  in  a  writing,  signed 
by  him  or  his  agent,  he  is  bound,  but  no  oral  agreement 
on  his  part  can  create  such  a  liability.  The  statute 
applies  only  to  debts  existing  against  the  estate.  If  the 
executor  agrees  with  an  heir  to  pay  a  sum  of  money 
if  he  will  abstain  from  bringing  suit  to  contest  the  will 
or  the  probate  of  it,  this  is  a  personal  undertaking  of 
his  own,  and  one  which  does  not  fall  within  the  statute. 

§  464.  Debt,  default  and  miscarriage. — What  is 
meant  by  the  terms  "debt,"  "default"  and  "miscarriage" 
of  another,  for  which  one  shall  not  be  answerable  upon 
his  oral  promise?  It  may  be  said,  generally,  that  under 
these  terms  are  included  every  form  of  liability  or  obliga- 
tion which  rests  upon  one,  whether  it  grows  out  of  tort 
or  contract,  or  from  whatever  cause.  There  are  three 
persons  to  be  considered  :  ( 1 )  The  person  who  owes  the 
debt  or  has  incurred  the  liability.  (2)  The  person  to 
whom  the  debt  is  owing  or  who  is  entitled  to  enforce 
the  existing  liability.  (3)  The  stranger  to  the  transac- 
tion, against  whom  no  liability  exists,  and  whom  it  is 
sought  to  charge  with  the  liability  of  the  debtor  or 
wrongdoer. 

§  465.  Original  or  collateral  obligation. — Whether 
an  oral  promise  is  enforcible  or  not  under  this  clause  of 
the  statute  depends  generally  upon  the  question  whether 
the  promise  is  an  original  obligation  or  is  collateral  to 
some  other's  obligation.  If  the  former,  it  would  be 
valid;  if  the  latter,  it  would  be  barred.  For  example: 
If  A  promises  to  pay  for  goods  furnished  to  B,  who 
makes  no  promise,   it  is  evident  that  A's  promise   is  the 


288  EI^UMENTARV    I,AW  [§  466 

only  and  original  obligation,  and  that  it  is  not  within  the 
statute  of  frauds.  But  if  B  promises  to  pay  for  the 
goods,  and  A  promises  to  pay  in  case  B  fails  to  do  so,, 
A's  promise  is  collateral,  and  an  action  on  it  is  barred 
by  the  statute. 

§  466.  Agreements  in  consideration  of  marriage. — 
It  is  hardly  necessary  to  say  that  this  clause  of  the  stat- 
ute does  not  refer  to  the  mutual  promises  of  marriage. 
It  has  sole  reference  to  promises  collateral  to  the  mar- 
riage which  are  made  upon  condition  that  the  marriage 
shall  take  place,  as  where  a  man  agrees  to  make  a 
settlement  or  pay  a  sum  of  money  if  a  marriage  is  con- 
summated. An  antenuptial  agreement  by  which,  before 
marriage,  a  woman  agrees  to  relinquish  her  marital  rights 
in  her  husband's  property,  in  consideration  of  the  pay- 
ment to  her  of  a  sum  certain,  is  within  the  statute  and 
must  be  in  writing  to  make  it  binding.  Nor  is  the  subse- 
quent marriage  of  the  parties  such  a  part  performance  of 
the  contract  as  will  take  the  contract  out  of  the  statute. 

§  467.  Contracts  for  sale  of  lands. — The  word  land 
as  it  is  used  in  this  statute  has  been  held  to  include  not 
only  the  land  itself,  but  every  claim  of  a  permanent  right 
to  hold  lands  of  another  for  a  particular  purpose,  and 
to  enter  upon  them  at  all  times  witliout  his  consent.  A 
mere  verbal  license  to  enter  upon  land  for  a  temporary 
purpose  is  revocable.  Difficulties  arise  as  to  what  things 
annexed  to  land  are  covered  by  the  term  as  it  is  used  in 
the  statute.  A  ripened  crop  ready  to  be  gathered,  and  a 
sale  of  any  growing  produce,  raised  by  labor  and  expense, 
in  actual  existence  at  the  time  of  the  contract,  may  be 
the  subject  of  a  binding  parol  contract.  And  it  has  even 
been  held  that  where  timber  or  other  produce  of  land,  or 
any  other  thing  annexed  to  the  land  is  specifically  sold. 


s 


469 j  STATUTE  OF  FRAUDS  289 


whether  the  buyer  or  seller  is  to  sever  it,  under  a  special 
license  to  enter  for  that  purpose,  it  is  a  sale  of  goods 
and  not  a  sale  of  an  interest  in  land.  By  statutes  of 
some  of  the  states,  it  is  enacted  that  leases  of  land  for 
short  terms  are  valid,  though  resting  in  parol. 

§  468.  Agreements  not  to  be  performed  within  a 
year. — The  agreement  must  be  impossible  of  perform- 
ance within  the  year,  and  the  parties  to  it  must  contem- 
plate that  it  shall  not  be  performed  within  the  year.  The 
mere  fact  that  it  may  not  be,  or  is  not  in  fact  performed 
within  the  year,  does  not  bring  it  within  the  statute. 
Illustrating  these  rules,  it  has  been  held  that  an  agree- 
ment to  do  something  upon  the  happening  of  a  marriage, 
or  upon  the  return  of  a  ship,  or  to  pay  a  certain  sum  of 
money  from  time  to  time  during  the  life  of  another,  is 
not  within  the  statute.  But  if  it  can  not  be  fully  per- 
formed within  the  year,  the  fact  that  it  may  be 
terminated,  or  that  further  performance  may  be  excused, 
is  not  sufficient  to  take  it  out  of  the  statute.  In  most 
of  the  states  it  is  held  that  the  statute  applies  only  to 
contracts  which  are  not  to  be  performed  on  either  side 
within  a  year;  and  that  if  the  parol  contract  is  to  be  fully 
performed  on  one  side  within  the  year,  it  will  be  good 
under  the  statute  of  frauds  even  though  the  other  side 
can  not  be  performed  within  the  year.  Other  siates  hold 
the  contrary  doctrine. 

§  469.  The  note  or  memorandum. — The  statute  re- 
quires that  to  make  any  of  the  contracts  or  agreements 
just  enumerated  as  within  the  fourth  section  of  the 
statute  of  frauds  enforcible,  the  agreement,  or  some  note 
or  memorandum  thereof,  shall  be  in  writing  and  signed 
by,    or    by    the    authority    of,    the    person    sought    to    be 

charged   thereby.      It   becomes   important   to   know   what 
19 — Elem.  Law. 


290  El^EMIiNTARY    LAW  [§  470 

sort  of  a  note  or  memorandum  is  here  meant.  The 
statute  relates  to  a  parol  contract,  the  evidence  of  which 
must  be  supplied  by  a  written  note  or  memorandum. 
This  memorandum  may  be  gathered  from  correspondence 
or  embodied  in  a  single  letter,  and  it  is  not  necessary 
that  it  be  made  at  the  time  of  the  agreement.  It  is  rather 
the  acknowledgment  of  the  fact  that  a  contract  has  been 
made  than  a  written  contract  itself,  which  is  an  instru- 
ment entered  into  and  signed  at  the  time  it  is  made.  The 
memorandum  may  be  made  by  a  broker  who  is  the  agent 
of  both  parties ;  it  may  be  made  by  an  auctioneer  who  is 
agent  for  buyer  and  seller ;  it  may  be  made  by  one  of 
the  parties  and  not  delivered  to  the  other,  or  the  fact  that 
it  has  been  made  may  be  unknown  to  the  party  who 
seeks  to  enforce  it  until  long  after  it  has  been  made;  it 
may  be  made  at  any  time  before  the  action  is  commenced. 
It  must  show  agreement  on  the  part  of  the  party  sought 
to  be  charged;  it  must  show  clearly  the  subject-matter 
and  all  the  terms  of  the  agreement,  the  parties  to  it,  and 
some  courts  hold  that  it  must  show  what  the  considera- 
tion is.  Some  of  the  states  in  their  laws  adopting  the 
provisions  of  the  statute  expressly  state  either  that  the 
consideration  must  appear  in  the  memorandum  or  that  it 
is  unnecessary. 

§  470.  Signature  to  memorandum. — The  signing 
may  be  by  the  party  sought  to  be  charged,  or  by  his 
authorized  agent.  A  mark  of  an  illiterate  man  is  a 
sufificient  signing,  or  the  initials  of  a  name.  The  place 
of  the  signature  is  unimportant.  If  the  memorandum  was 
written  by  the  party  or  his  agent,  and  his  name  appears 
in  the  body  of  it,  it  is  sufficient. 


CHAPTER  XXXV 

NEGOTIABLE   INSTRUMENTS 

Sf.  Sec. 

471.  Definitions.  480.     Certainty. 

472.  The      Negotiable      Instru-       481.     Surety,   guarantor,  ir> 

nients  Law.  dorser  and  assignor. 

473.  Origin  of  law  merchant.  482.  Law  of  the  place. 

474.  Foreign  and  inland  bills.  483.  Agents. 

475.  Parties    to    a    bill    of    ex-  484.  Capacity  of  parties. 

change.  485.     Consideration. 

476.  Indorsement.  486.     Purchase    for   value   with- 

477.  Duty  of  the  holder.  out  notice. 

478.  Special  indorsements.  487.     Bills  of  lading  and  checks. 

479.  Signatures  and  date. 

§  471.  Definitions. — Contracts  in  the  form  of  bills 
of  exchange  and  promissory  notes  will  now  be  considered. 

The  old  definition  of  a  bill  of  exchange,  which  is 
approved   by   Kent,   is   as    follows : 

A  bill  of  exchange  is  a  written  order  or  request  by 
one  person  to  another,  for  the  payment  of  money  at  a 
specified   time,   absolutely  and   at  all  events. 

A  promissory  note  may  be  defined  as  a  written 
engagement  by  one  person  to  pay  to  another  therein 
named  or  to  his  order  or  to  bearer  absolutely  and  uncon- 
ditionally a  certain  sum  of  money  at  a  time  specified 
therein. 

The  main  thing  that  distinguishes  these  from 
other  contracts  is  that  they  are  negotiable,  that  is,  that 
the  legal  title  may  be  transferred  from  one  person  to 
another,  each  person  getting  the  legal  title  and  the  right 
to  sue  in  his  own  name.  Most  of  the  law  of  negotiable 
instruments  is  concerned  with  this  special  feature  and 
its  main  purpose  is  to  so  facilitate  the  free  exchange 

291 


292  ELEMENTARY    LAW  [§  472 

of  commercial  paper  as  to  make  it  an  available  medium 
for  commercial  transactions. 

§  472.  The  Negotiable  Instruments  Law. — The  com- 
mon law  governing  negotiable  instruments  which  is  com- 
monly known  as  the  law  merchant  has  been  codified  into 
the  Negotiable  Instruments  Law  and  this  code  has  been 
adopted  in  almost  all  of  the  states  and  in  the  District  of 
Columbia.  A  similar  act  has  been  adopted  in  England. 
The  main  objects  of  the  code  are  to  produce  uniformity 
among  the  various  states  "and  to  preserve  its  existing 
rules,  as  reflected  by  the  current  of  the  best  judicial 
authority  and  existing  legislation,  in  plain  intelligible 
terms."  Since  it  is  mainly  the  codification  of  the  com- 
mon law  and  existing  statutes  with  but  few  important 
changes,  this  chapter  w\\\  deal  with  the  underlying  prin- 
ciples of  the  code,  it  in  itself  being  too  lengthy  to  be 
printed  in  a  volume  of  this  scope. 

§  473.  Origin  of  law  merchant. — Bills  of  exchange 
which  were  first  used  by  the  bankers  and  merchants  of 
Florence  and  Venice,  to  facilitate  the  transfer  of  credits 
between  distant  points,  came  to  England  through  Erance 
early  in  the  fourteenth  century.  Negotiable  notes  did  not 
come  into  use  in  England  until  about  two  hundred  years 
ago.  Embarrassments  arose  in  the  application  of  the 
common  law  of  England  to  these  forms  of  contract,  and 
it  was  after  a  long  struggle  tliat  the  courts  engrafted 
upon  the  common  law  the  law  merchant,  by  which  the 
parties  to  bills  and  notes  are  put  upon  a  footing  entirely 
different  from  that  of  parties  to  other  contracts. 

Some  statutes  require  that  tlie  note,  to  be  negotiable 
according  to  the  law  merchant,  must  be  payable  to  the 
order  of  the  payee ;  some  that  it  must  be  payable  to  his 
order    and    at    a    bank    of    discount    and    deposit.      Some 


§  476]  negotiabi^e;  instruments  293 

authorities  hold  that  a  promissory  note  is  negotiable,  with- 
out the  phrases  "or  order"  or  "to  the  order."  Notes 
payable  to  bearer  are  negotiable  by  delivery. 

§  474.  Foreign  and  inland  bills. — A  foreign  bill  of 
exchange  is  one  that  is  drawn  in  one  state  or  country 
and  payable  in  another,  and  the  several  states  of  the 
Union  are   foreign  to  one  another  in  this  respect. 

An  inland  bill  of  exchange  is  one  that  is  drawn  and 
payable  in  the  same  state  or  country. 

§  475.  Parties  to  a  bill  of  exchange. — The  parties 
to  a  bill  of  exchange  may  be  the  drawer,  who  is  the 
maker;  the  drawee,  the  person  who  is  requested  to  pay 
it;  the  payee,  to  whom  by  the  terms ^of  the  bill  it  is  to  be 
paid.  We  give  a  simple  form  of  a  bill  with  the  three 
parties  named : 

$500.00  New  York,  May   1,   1895. 

On  demand  pay  John  Jones  (payee)  or  order  five 
hundred  dollars,  value  received,  and  charge  same  to 
account  of  John   Smith    (drawer). 

To  Richard  Roe  (drawee),  Philadelphia. 

§  476.  Indorsement. — If  John  Jones,  the  payee, 
wishes  to  transfer  the  bill  he  does  so  by  simply  writing 
his  name  on  the  back  of  it  and  delivering  it  to  the  per- 
son to  whom  he  transfers  it,  and  this  new  party,  so  long 
as  he  keeps  the  paper,  is  the  indorsee  or  holder.  If  he 
in  turn  wishes  to  transfer  it,  he  writes  his  name  on  the 
back  and  gives  it  to  the  person  to  whom  he  transfers 
it,  in  which  case  he  loses  his  character  as  indorsee  and 
holder  and  becomes  an  indorser,  and  the  person  to  whom 
he  transfers  the  paper  becomes  the  indorsee  and  holder. 


294  El^EMENTARY    LAW  [§  477 

§477.  Duty  of  the  holder. — It  is  the  duty  of  the 
holder  of  the  bill,  whether  he  be  payee  or  indorsee,  to 
promptly  present  it  to  the  drawee  for  payment,  if  it  is 
payable  on  demand,  or  to  present  it  to  him  for  acceptance 
if  presentment  for  acceptance  is  necessary  to  fix  the 
maturity  of  the  instrument,  or  where  the  instrument 
expressly  stipulates  it,  or  where  the  bill  is  drawn  else- 
where than  at  the  residence  or  place  of  business  of  the 
drawee.  If  the  bill  is  accepted  the  drawee  evidences  his 
acceptance  by  writing  across  the  face  of  the  bill  the  word 
"accepted,"  and  signing  his  name  under  it.  If  when 
presented  to  the  drawee  he  refuses  to  pay  or  accept  the 
bill,  it  becomes  the  duty  of  the  holder  to  have  it  pro- 
tested if  it  is  a  foreign  bill;  that  is  done  by  a  notary 
public  who  presents  ij  for  payment  or  acceptance  at  the 
place  where  it  is  payable  in  business  hours,  and  upon 
acceptance  or  payment  not  being  made,  he  protests  the  bill 
and  makes  a  certificate,  attested  by  his  signature  and 
notarial  seal,  showing  the  fact  of  presentment  and  non- 
acceptance  or  nonpayment,  as  the  case  may  be.  Notice 
in  writing  of  protest  must  be  promptly  given  by  the 
notary  to  the  drawers  and  indorsers,  if  any,  in  order  to 
fix  their  liability  to  the  holder.  If  the  bill  is  not  pre- 
sented in  time,  and  if  notice  of  nonacceptance  or  nonpay- 
ment and  protest  is  not  promptly  given,  the  drawer  and 
indorsers  are  discharged  from  liability,  unless  by  the 
terms  of  the  bill  presentment,  demand  and  protest  are 
waived. 

§  478.  Special  indorsements. — The  form  of  indorse- 
ment, and  the  rights  and  liabilities  of  indorsers  and 
indorsees,  are  not  always  the  same.  By  an  indorsement 
"without  recourse,"  the  indorser  engages  that  the  instru- 
ment is  the  valid  obligation  of  those  whose  names  are 
upon  it  and  that  he  has  the  right  to  indorse  it,  but  does 


§  481]'  NEGOTIABLE    INSTRUMENTS  295 

not  warrant  the  solvency  of  any  of  the  parties  to  the 
bill.  By  an  indorsement  in  blank  the  indorser  makes 
himself  liable  to  any  one  who  comes  into  possession  of 
the  bill  honestly.  If  his  indorsement  is  special  as  to  a 
particular  person,  he  is  only  liable  to  the  person  named 
or  to  the  indorsee  of  the  person  named  and  those  claim- 
ing through  him. 

§  479.  Signatures  and  date. — A  note  or  bill  of  ex- 
change must  be  in  writing  and  signed;  the  initials  or  a 
mark  will  be  a  good  signature,  and  it  is  immaterial  where 
the  signature  is  placed;  the  party  making  it  will  be  bound 
according  to  his  intent.  A  date  is  not  essential,  and  if 
there  is  a  blank  for  a  date  any  holder  may  fill  in  the 
proper  date.  Until  a  note  is  delivered  it  has  no  force. 
Indorsements  are  presumed  to  be  of  the  date  of  the 
note,  but  the  real  date  is  matter  for  proof. 

§  480.  Certainty. — We  have  seen  that  the  promise 
to  pay  must  be  without  condition,  and  if  conditions  are 
annexed  the  paper  is  not  negotiable  by  the  law  merchant. 
It  must  be  for  the  payment  in  money.  A  promise  to 
pay  in  grain  or  any  other  specific  article  is  not  a  nego- 
tiable note.  The  time  of  payment  must  also  be  certain; 
it  may  be  fixed  by  any  event  which  is  sure  to  occur,  as 
the  event  of  one's  death;  if  payable  on  demand  it  is  due 
instantly.  So  it  is  necessary  that  the  place  of  payment 
should  be  certain.  If  no  place  is  named  then  the  place 
where  the  maker  or  drawee  resides  is  presumed  to  be 
meant.  The  amount  to  be  paid  must  be  certain.  If  the 
amount  is  expressed  in  figures  and  in  writing  and  they 
differ,  the  writing  controls. 

§  481.     Surety,   guarantor,   indorser  and  assignor. — 

In  addition   to   the   original   parties   to   negotiable   instru- 


296  ELEMENTARY    LAW  [§  482 

ments,  the  following  may  become  liable  thereon,  that  is, 
surety,  indorser,  guarantor  or  assignor.  The  rights  and 
obligations  of  each  are  different. 

A  surety  is  generally  a  co-maker,  and  his  promise 
is  to  meet  an  obligation  which  becomes  his  own  the 
moment  the  principal  fails  to  meet  it.  A  surety  is 
liable  as  much  as  the  principal  is  liable,  and  he  may  be 
sued  as  a  promisor. 

A  guarantor's  promise  is  to  pay  the  debt  of  the 
principal,  if  it  is  not  paid  by  him.  He  is  entitled  to 
notice  of  the  nonpayment  within  a  reasonable  time,  but 
is  not  discharged  from  liability  by  delay  in  the  notice, 
unless  actually  damaged  thereby. 

An  indorser  contracts  to  be  directly  liable,  but  only 
upon  condition  of  due  presentment  of  the  bill  or  note  on 
the  exact  day  of  its  maturity  and  due  notice  of  its  dis- 
honor. Failure  in  either  particular  discharges  him  abso- 
lutely from  liability,  whether  he  be  damaged  or  not  by 
the  failure. 

An  assignor  of  a  negotiable  instrument  is  one  who 
passes  the  title  by  mere  delivery,  without  writing  his 
name  upon  it.  This  may  happen  when  the  instrument  is 
payable  to  bearer  or  indorsed  in  blank.  The  assignor 
does  not  promise  that  the  obligation  shall  be  paid,  but 
he  warrants  that  he  knows  no  facts  that  will  prove  the 
instrument  to  be  valueless. 

In  addition  to  the  distinctive  obligation  of  each,  the 
indorser  and  the  assignor  each  warrants :  ( 1 )  That  the 
instrument  is  genuine,  (2)  that  it  is  valid,  (3)  that  prior 
parties  are  competent,  and  (4)  that  he  himself  has  law- 
ful title  to  the  instrument  and  right  to  transfer  it. 

§  482.  Law  of  the  place. — Where  a  bill  or  note  is 
made  in  one  place  and  is  payable  in  another,  the  law  of 
the    place    of    payment    fixes    the    rights    of    the    parties. 


§  485]  NEGOTIABLK    INSTRUMENTS  297 

Where  money  payable  in  one  state  is  secured  by  a 
mortgage  upon  land  in  another,  it  is  difficult  to  determine 
what  law  controls.  Where  it  is  attempted  to  enforce 
payment  by  foreclosure,  the  general  rule,  in  the  absence 
of  statutes  to  the  contrary,  is  that  the  rights  of  the 
parties  as  to  the  rate  of  interest  are  ascertained  by  refer- 
ence to  the  law  of  the  place  of  payment,  but  that  in  all 
that  relates  to  the  enforcement  of  the  remedy,  the  law  of 
the  place  where  the  mortgaged  property  is  situated  will 
control. 

§  483.  Agents. — In  the  execution  of  notes  by  an 
agent,  he  should  take  care  that  he  does  not  bind  himself 
personally,  and  to  avoid  this  he  should  always  sign  the 
name  of  his  principal,  and  append  to  that  his  own  name, 
with  letters  or  words  designating  himself  as  agent.  So 
partners  giving  notes  in  the  firm's  business  should  always 
sign  by  the  firm  name.  If  a  note,  negotiable  in  form,  is 
signed  and  delivered  to  another,  with  the  amount  and 
date,  names  of  drawee,  payee,  etc.,  left  blank,  the  person 
to  whom  it  is  delivered  is  the  agent  of  the  maker  to  fill 
the  blanks  in  accordance  with  the  intention  of  the  maker. 
Otherwise,  the  maker  is  not  bound  except  to  subsequent 
holders  in  good  faith. 

§  484.  Capacity  of  parties. — As  to  the  capacity  of 
persons  to  make  and  indorse  notes  and  bills,  and  the 
effect  of  the  various  forms  of  legal  disability,  as  infancy, 
insanity  and  the  like,  upon  the  rights  of  the  parties,  it 
is  enough  to  say  that  the  general  rules  governing  con- 
tracts heretofore  stated  will  apply. 

§  485.  Consideration. — As  between  the  original  par- 
ties to  a  note  or  bill,  some  legal  consideration  is  neces- 
sary   to    support    it,    but    the    obligation    assumed    by    an 


298  ELEMENTARY    LAW  [§  486 

indorser  for  the  accommodation  of  one  of  the  parties, 
by  its  very  nature,  has  no  consideration  to  support  it. 
If  the  accommodation  indorser  is  obhged  to  take  up  or 
pay  the  note  or  bill,  he  has  a  right  of  action  against  all 
prior  parties  who  are  liable  on  the  paper. 

§  486.     Purchase  for  value  without  notice. — It  is  a 

distinctive  quality  of  a  negotiable  instrument  that  if 
before  it  is  due  it  comes  into  the  hands  of  an  innocent 
purchaser  for  value,  he  takes  it  free  from  any  defenses 
or  equities  that  may  exist  between  prior  holders  or  the 
original  parties,  respecting  the  title,  the  amount  or  the 
consideration.  Though  the  instrument  be  stolen,  though 
the  maker  may  have  claims  against  some  prior  holder, 
though  the  instrument  be  procured  by  fraud,  be  paid,  or 
•have  no  consideration — such  defects  perish  with  the 
transfer,  so  far  as  the  innocent  holder  is  concerned. 
Other  defenses,  such  as  forgery,  alteration,  infancy,  etc., 
may  be  made  by  the  party  claiming  the  defense  against 
even  an  innocent  purchaser.  Such  rules  are  necessary 
to  secure  the  free  and  ready  transfer  of  negotiable  in- 
struments. If  purchasers  of  such  instruments  took  sub- 
ject to  all  defects  it  would  obviously  impede  their  cir- 
culation and  usefulness. 

§  487.  Bills  of  lading  and  checks. — A  bill  of  lading 
is  a  written  instrument  acknowledging  receipt  of  goods 
and  agreeing  to  transport  them  to  a  specified  place  and 
deliver  them  to  the  consignee  or  his  assigns.  It  is  a 
receipt  and  a  contract,  having  the  usual  attributes  thereof. 
It  is  at  the  same  time  the  representative  of  the  goods, 
and  as  such  has  certain  qualities  of  negotiability  that 
make  it  proper  to  consider  them  in  connection  with  the 
subject  of  bills  and  notes.  The  holder  of  a  bill  of  lading 
may    by    indorsing    and     delivering    the     instrument     to 


§  487]  NEGOTIABLE    INSTRUMENTS  299 

another  pass  to  the  transferee  the  title  to  the  goods 
represented,  as  fully  as  though  the  goods  themselves  were 
delivered.  The  transferee,  if  in  good  faith,  takes  the 
title  free  from  any  claims  against  the  indorser,  such  as 
the  right  of  stoppage  in  transitu  or  the  right  to  rescind 
for  fraud.  But  he  takes  only  such  title  as  the  indorser 
actually  had,  so  that  if  the  bill  of  lading  were  stolen, 
or  if  the  original  shipper  had  no  title  to  the  goods,  the 
indorsee  could  acquire  none.  Thus  a  bill  of  lading  is 
only  negotiable  to  a  limited  extent.  It  does  not  come 
under  the  Negotiable  Instruments  Law. 

Checks    are   bills    of    exchange    and    come    within    the 
/)rovision  of  the  code. 


CHAPTER  XXXVI 
CONTRACTS   OF  INSURANCE 
Sec.  .  Sec. 


488. 

Definition. 

492. 

Payment  of  premiums, 

489. 

Contract,  how  made. 

493. 

Waiver  of  payment. 

490. 

How  interpreted. 

494. 

Insurable  interest. 

491. 

Warranty  and  representa- 
tion. 

495. 

Increase  of  risk. 

§  488.  Definition. — Insurance  is  a  contract  whereby 
one  party  agrees  to  indemnify  anotner  in  case  ne  snail 
suffer  loss  in  respect  of  a  specified  subject  by  a  specified 
peril.  The  party  who  insures  is  called  the  underwriter; 
the  party  indemnified  is  called  the  insured.  When  the 
contract  is  in  writing  it  is  called  the  policy.  Unless  pro- 
hibited by  a  law  a  verbal  contract  of  insurance  is  valid. 
And  so,  after  the  execution  and  delivery  of  the  policy  its 
terms  may  be  modified  by  verbal  agreement.  Insurance 
contracts  may  be  made  to  pay  a  certain  sum  in  case  of 
death  or  accidental  injury  of  some  person,  or  of  death 
or  accidental  injury  to  live  stock;  in  case  of  loss  of  prop- 
erty by  fire  or  tornado;  in  case  of  loss  of  ships  or  their 
cargoes  by  perils  of  the  sea;  in  case  of  failure  of  title 
to  property;  in  case  of  the  temporary  illness  of  the 
insured.  These  are  all  forms  of  indemnity  contracts 
which  may  be  properly  called  insurance  contracts. 

§  489.  Contract,  how  made. — The  form  of  the  con- 
tract is  immaterial,  unless  there  is  something  in  the  law 
or  the  charter  of  the  company  making  it  which  requires 
it  to  be  in  a  specified  form.  When  the  policy  is  issued 
by  the  company,  and  accepted  by  the  insured,  the  rights 

300 


§  491]  CONTRACTS    OF    INSURANCE  301 

and  liabilities  of  the  parties  are  fixed  by  its  terms.  If 
all  the  terms  of  the  contract  have  been  agreed  upon,  and 
it  only  remains  for  the  company  to  issue  the  policy,  the 
failure  to  issue  it  will  not  invalidate  the  contract.  When 
the  contract  takes  effect  is  a  question  which  is  to  be 
determined  by  reference  to  the  rules  already  stated,  under 
the  head  of  contracts  in  general.  Where  the  agent  of  the 
company  agrees  with  the  insured  upon  the  terms  of  the 
contract,  but  with  the  express  understanding  that  it  is 
not  to  take  effect  until  the  company  has  approved  it,  no 
valid  contract  exists  until  such  approval. 

§  490.  How^  interpreted. — When  made  in  w^riting, 
the  interpretation  of  the  contract  is  for  the  court,  the 
object  being  always  to  arrive  at  the  real  intention  of  the 
parties.  It  can  not  be  denied,  however,  that  the  rules 
of  interpretation  adopted  in  the  courts  of  the  country  in 
insurance  cases  tend  to  the  conclusion  that  insurance 
companies  are  not  favorites  of  the  law.  Stipulations  in 
a  policy  are  construed  liberally  towards  the  insured,  and 
strictly  against  the  insurer.  Even  where  a  stipulation  in 
a  policy  is  violated  by  the  insured,  it  will  not  prevent  a 
recovery  on  the  policy,  unless  it  is  expressly  provided 
that  such  violations  shall  work  a  forfeiture. 

§  491.  Warranty  and  representation. — Questions 
arise  whether  certain  stipulations  in  the  policy  amount 
to  a  warranty  or  a  representation  merely.  A  warranty 
is  a  statement  or  stipulation  inserted  in  or  referred  to 
in  and  made  a  part  of  the  policy,  upon  the  truth  or  per- 
formance of  which  on  the  part  of  the  insured  the  validity 
of  the  contract  depends.  A  representation  is  an  incidental 
statement  made  by  the  insured  with  regard  to  some 
feature  of  the  risk  upon  the  faith  of  which  the  contract 
is  entered  into.     It  is  said  to  be  no  part  of  the  contract. 


302  ELEMENTARY    lAW  [§  492 

and  that  it  need  not  be  literally,  though  it  must  be  sub- 
stantially true.  So  it  is  evidently  a  matter  of  difficulty 
in  many  cases  to  distinguish  between  the  two.  Inten- 
tional concealment  of  material  facts  will  avoid  a  policy 
unless  the  company  knew  of  their  existence.  Material 
facts  are  such  facts  only  as  may  be  fairly  presumed  to 
have  been  material  in  the  belief  of  the  insured. 

§  492.  Payment  of  premiums. — The  premium  is  the 
consideration  for  the  insurance,  and  must  be  paid  by 
the  insured  or  by  some  one  for  him.  Where  the  policy 
provides  that  the  payment  of  the  first  premium  must  be 
made  when  the  policy  is  delivered,  it  does  not  take  effect, 
though  delivered,  until  payment  is  made.  Where  a  note 
is  given  and  accepted  for  the  premium,  a  failure  to  pay 
the  note  when  due  will  not  avoid  the  policy  unless  it  is 
expressly  stipulated  that  such  shall  be  its  effect.  The 
manner  of  payment  is  immaterial  if  it  is  accepted  by 
the  company  or  its  agent,  and  is  in  accordance  with  the 
usual  course  of  business  of  the  agent,  known  to  the 
company.  In  companies  where  the  insured  is  entitled  to 
have  his  dividends  credited  as  part  payment  of  his  premi- 
ums, it  is  the  duty  of  the  company  to  give  him  timely 
notice  of  the  amount  in  cash  which  it  is  necessary  for 
him  to  pay,  the  reason  being  that  the  company,  having 
exclusive  knowledge  of  the  facts,  is  bound  to  make  them 
known.  Premiums  falling  due  on  Sunday  may  be  paid 
on  the   following  Monday. 

§  493.  Waiver  of  payment. — An  agent  having  au- 
thority to  receive  the  premium  may  agree  with  the  in- 
sured to  waive  prompt  payment,  the  agent  becoming 
debtor  to  the  company  for  the  amount,  and  such  waiver 
will  bind  the  company.  And  even  where  the  policy  makes 
a  failure  to  make  prompt  payment  a  cause  of  forfeiture, 


§  495]  CONTRACTS    OF    INSURANCE  303 

if  the  company  has  been  in  the  habit  of  granting 
indulgence  to  the  insured  and  accepting  payments  after 
due,  it  can  not  insist  upon  a  forfeiture  for  a  failure  to 
make  prompt  payment. 

§  494.  Insurable  interest. — It  is  essential  to  a  valid 
policy  that  the  insured  should  have  an  insurable  mterest 
in  the  life,  or  the  thing  insured,  and  generally  speaking, 
whatever  has  an  appreciable  pecuniary  value,  and  is  sub- 
ject to  loss  or  deterioration,  or  of  which  one  may  be  de- 
prived, or  which  he  may  fail  to  realize,  whereby  his 
pecuniary  interest  is  or  may  be  prejudiced,  may  properly 
constitute  the  subject-matter  of  insurance,  the  object  of 
insurance  being  to  protect  men  against  uncertain  events 
which  may  in  any  wise  be  of  disadvantage  to  them. 

§  495.  Increase  of  risk. — The  doing  of  anything  by 
the  insured,  or  with  his  assent,  which  increases  the  risk 
of  the  company,  will  avoid  the  policy,  as  the  removal  of 
one  whose  life  is  insured  to  a  place  prohibited  by  the 
policy,  or  the  change  of  a  business  carried  on  upon  the 
insured  property  to  another  business  which  increases  the 
danger  of  loss  by  fire.  It  is  the  duty  of  the  insured  who 
contemplates  a  change  of  that  character  to  notify  the 
company  and  procure  its  assent  to  the  proposed  change. 
In  making  answer  to  questions  as  to  the  previous  serious 
illness  of  the  applicant  for  life  insurance,  if  the  applicant 
in  good  faith  believes  his  answer  to  be  true,  it  will  not 
avoid  the   policy,   though   his   answer   may   be   erroneous. 


CHAPTER  XXXVII 
SALES   AND   OTHER   PARTICULAR   CONTRACTS 


Sec. 

Sec. 

496. 

Contracts  of  sale  and  ex- 

500. 

Delivery. 

change. 

SOL 

Contracts  of  bailment. 

497. 

\Varranties. 

502. 

Contracts  of  common  car- 

498. 

Transfer  of  title. 

riers. 

499. 

Sale   of  goods,  wares  and 
merchandise. 

§  496.  Contracts  of  sale  and  exchange. — Having 
considered  the  nature  of  contracts  in  general,  and  how 
and  by  whom  they  may  be  made,  we  proceed  to  inquire 
into  the  nature  of  particular  contracts,  and  first  of  con- 
tracts of  sale  and  exchange.  Kent  says:  "A  sale  is  a 
contract  for  the  transfer  of  property  from  one  person  to 
another  for  a  valuable  consideration.  Three  things  are 
requisite  to  its  vaHdity,  that  is,  the  thing  sold,  which  is 
the  object  of  the  contract,  the  price,  and  the  consent  of 
the  contracting  parties."  By  the  Roman  law  things  sold 
and  delivered  did  not  become  the  property  of  the  buyer 
until  he  had  paid  the  seller  the  price  or  satisfied  him  in 
some  way  or  other,  as  by  procuring  some  one  to  be 
security  or  by  giving  a  pledge.  But  if  the  seller  accepted 
the  credit  of  the  buyer  the  thing  then  immediately  be- 
came the  property  of  the  buyer.  And  this  is  practically 
the  law  now  in  all  civilized  countries. 

§  497.  Warranties. — The  thing  sold  must  exist.  A  con- 
tract of  sale  of  a  dead  horse,  which  the  parties  think  is  liv- 
ing, is  no  sale.  This  is  true  of  the  sale  of  a  house  which 
had  been  destroyed,  if  the  house  and  not  the  land  on 
which  it  was  built  was  the  principal  thing  in  the  minds 

304 


§  497]  SALES    AND   OTHER    PARTICULAR    CONTRACTS  305 

of  the  contracting  parties.  When  goods  are  sold  there 
is  an  impHed  warranty  that  the  seller  has  title.  There 
is  no  warranty  of  title  to  real  estate  sold  unless  it  is 
expressed  in  the  conveyance.  If  one  in  due  form  con- 
tracts for  the  sale  of  real  estate,  and  refuses  to  convey, 
the  court  at  the  suit  of  the  buyer  will  compel  the  seller 
to  convey,  if  the  buyer  has  performed  or  tendered  per- 
formance of  his  part  of  the  contract;  or  if  the  buyer 
elects  he  may  sue  the  seller  for  damages.  Except  in  rare 
cases,  as  where  the  contract  is  for  the  sale  of  stock  in 
a  corporation,  courts  will  not  compel  the  seller  of  personal 
property  to  transfer  it  to  the  buyer,  leaving  the  buyer  to 
his  action  for  damages. 

As  to  the  quality  of  goods  sold  there  is  no  warranty 
implied  except  in  cases  of  sales  by  sample  or  by  descrip- 
tion where  there  is  a  warranty  that  the  goods  sold  will 
be  of  the  same  quality  as  the  sample,  or  correspofid  to 
the  description.  Where  a  dealer  in  a  special  kind  of 
goods  sells  by  description,  there  is  also  an  implied  war- 
ranty that  such  goods  will  be  merchantable.  Where  a 
purchaser  buys  an  object  for  a  special  purpose  from  the 
producer,  relying  upon  his  skill  and  judgment,  the  seller 
impliedly  warrants  the  object  as  reasonably  fit  for  such 
a  purpose.  There  may  be  latent  defects  in  the  article 
unknown  to  both  parties,  and  in  such  cases  the  buyer 
takes  it  at  his  own  risk,  but  if  the  seller  knew  of  such 
defects  his  concealment  of  them  might  amount  to  fraud, 
which  would  give  the  buyer  a  right  to  rescind  the  con- 
tract or  sue  for  damages.  Where  defects  of  quality  were 
apparent  and  each  had  equal  means  of  information,  there 
is  no  fraud,  nor  will  mere  statements  of  opinion  as  to 
value  made  by  the  seller  amount  to  fraud. 

If  in  a  sale  of  several  tracts  of  land  or  several  horses 
at   the   same   time   title    fails    as   to   part,    the   buyer   can 

not  be  held  to  the  contract  unless  he  waives  his  right  to 
20 — Elem.  Law. 


306  ELEMENTARY    LAW  [§  498 

object.  Of  course,  if  there  is  a  total  failure  of  consider- 
ation the  contract  is  void.  If  parties  are  negotiating  b}'' 
letter  for  a  sale,  the  party  making  the  offer  may  revoke 
it  at  any  time  before  it  is  accepted;  once  accepted,  how- 
ever, it  can  not  be  revoked. 

Express  warranties  are  those  embodied  in  the  terms 
of  the  contract.  Express  warranties  do  not  exclude 
implied  warranties  unless  inconsistent  with  them.  General 
warranties  will  not  cover  specific,  obvious  defects  in  the 
thing  warranted,  although  a  special  warranty  will  if  so 
intended.  General  words  of  commendation,  generally 
known  as  ''puffing"  or  "sellers'  talk"  are  not  warranties. 

§498.  Transfer  of  title.— When  does  the  title  to 
the  thing  sold  pass  from  the  seller  and  vest  in  the  buyer? 
When  the  terms  of  the  sale  are  agreed  upon  and  the 
seller  <!^ias  performed  his  part  of  the  contract,  from  that 
instant  the  property  is  at  the  risk  of  the  buyer.  So, 
when  the  terms  are  agreed  upon  and  the  buyer  pays  or 
tenders  the  price,  he  is  entitled  to  possession  of  the  thing 
purchased.  These  general  rules  may  be  varied  by  the 
agreement  of  the  parties,  fixing  a  different  method  of 
payment,  postponing  the  time  of  delivery,  etc.  If 
credit  is  given,  the  title  passes  to  the  buyer  without  pay- 
ment, but  if  in  such  case  the  buyer  becomes  insolvent 
after  the  purchase  and  before  the  thing  purchased  comes 
to  his  possession,  the  seller  may  reclaim  the  goods,  and 
defeat  the  buyer's  title  by  asserting  wliat  is  called  the 
right  of  stoppage  in  transitu.  An  unconditional  contract 
of  sale  of  specified  goods  in  deliverable  condition  passes 
title  at  once,  although  both  delivery  and  payment  are  to 
be  made  at  a  future  time,  unless  the  contract  expressly 
provides  otherwise.  If  the  goods  are  not  in  a  deliverable 
state,  or  there  is  something  yet  to  be  done  to  them  as 
branding  or   stamping,   the   title   passes   as   soon   as   they 


§  499]         SAIvES   AND   OTHER   PARTICULAR    CONTRACTS  307 

are  put  in  the  deliverable  state  or  the  branding  or  stamp- 
ing is  done. 

Where  the  unconditional  sale  is  of  unspecified  but  de- 
scribed goods,  the  title  passes  as  soon  as  the  goods  are 
specified  or  clearly  set  aside  for  that  purpose  or  delivered. 

§  499.  Sale  of  goods,  wares  and  merchandise. — 
Oral  contracts  for  the  sale  of  goods  worth  fifty  dollars 
and  over  can  not  be  enforced,  unless,  (1)  the  buyer 
receives  part  of  the  goods,  (2)  the  buyer  gives  some- 
thing in  earnest  to  bind  the  bargain.  This  section  does 
not  apply  to  contracts  for  labor,  nor  where  one  goes 
to  a  mechanic  and  orders  the  manufacture  of  an  article. 
On  this  point  there  is  a  conflict  in  the  decisions.  It  is 
held  by  some  courts  that  if  the  buyer  gives  an  order  for 
the  manufacture  of  an  article  which  is  usually  kept  in 
stock,  it  is  within  the  statute,  but  that  if  he  orders  some- 
thing of  a  particular  pattern  to  be  made  to  suit  his  own 
fancy  the  statute  does  not  apply,  and  this  appears  to  be 
the  weight  of  authority.  Sales  at  auction  are  within  the 
statute,  and  it  is  the  duty  of  the  auctioneer  when  he  an- 
nounces a  sale  to  make  a  memorandum  of  it  or  to  deliver 
the  goods.  In  order  to  make  a  delivery  of  a  part  of 
the  goods  effective,  the  delivery  must  be  complete  and  be 
accepted  by  the  buyer;  so  where  it  is  desired  to  bind  the 
bargain  by  a  delivery  of  something  in  earnest,  the  pay- 
ment must  be  made  if  in  money,  or  the  article  actually 
delivered  if  it  is  something  else  than  money,  and  this  may 
be  done  at  any  time  before  suit,  unless  the  statute  requires 
it  to  be  done  at  the  time  the  bargain  is  made. 

As  to  the  form  of  the  memorandum  necessary  to  bind 
a  bargain  for  sale  of  goods,  what  has  already  been  said 
of  the  requisites  of  the  memorandum  to  bind  agreements 
for  the  sale  of  lands  will  apply. 


308  EI.EMENTARY    I.AW  [§500 

§  500.  Delivery. — As  we  have  seen  in  what  has 
been  said,  if  the  value  of  the  chattel  sold  is  fifty  dollars 
or  more,  and  it  is  not  convenient  to  make  prompt  deliv- 
ery, the  contract  of  sale  may  be  made  binding  by  a  memo- 
randum or  by  the  payment  of  part  of  the  purchase-money. 
And  a  delivery  of  a  part  of  the  goods  sold  and  an 
acceptance  of  them  by  the  buyer  will  bind  the  bargain. 
Where  nothing  is  said  as  to  the  time  for  payment  and 
delivery,  they  are  both  to  be  done  at  the  same  time.  In 
all  sales  where  anything  remains  to  be  done  by  the 
buyer,  such  as  the  giving  of  a  note  or  security  for  the 
purchase-money,  the  property  does  not  vest  in  the  buyer 
until  that  condition  is  performed,  unless  it  is  waived  by 
the  seller.  Delivery  to  the  agent  of  the  buyer,  or  to 
a  carrier  for  him,  is  a  good  delivery,  and  where  no  par- 
ticular mode  of  carriage  is  named  in  the  contract,  the 
seller  may  send  the  goods  by  any  of  the  customary  modes 
of  transportation.  There  may  be  a  symbolical  delivery 
of  the  things  sold,  as  by  giving  the  key  of  the  ware- 
house which  contains  them  to  the  buyer.  Marking  the 
goods  sold  with  the  name  of  the  buyer,  or  setting  them 
apart  by  his  request,  in  a  place  designated  by  him,  may 
constitute  a  good  delivery.  If  no  place  for  delivery  is 
fixed  by  the  contract,  the  rule  is  that  they  are  to  be 
delivered  at  the  place  where  the  contract  is  made,  or 
where  the  goods  sold  are  kept  for  sale.  A  note  payable 
in  specific  articles,  as  in  wheat  or  any  other  commodity, 
must  be  presented  for  payment  at  the  farm  or  place  of 
business  of  the  maker  of  the  note.  Secret  sales  of  per- 
sonal property,  which  is  left  in  the  possession  of  the 
seller,  are  not  absolutely  void,  but  the  retaining  of  pos- 
session by  the  seller  is  a  strong  circumstance  tending  to 
show  that  the  sale  was  a  sham,  especially  where  the  seller 
is  in  debt  and  embarrassed  at  the  time.  The  federal 
courts  hold  that  a  bill  of  sale  is   fraudulent  as  to  third 


§  501]  SALES    AND   OTHER   PARTICULAR    CONTRACTS  309 

persons,  unless  possession  is  given  to  the  buyer.  The 
decisions  of  the  state  courts  are  not  all  in  harmony  with 
this  rule. 

§  501.     Contracts  of  bailment. — Bailment  Is  the  de- 
livery of  one's  personal  property  to  another   for  a  tem- 
porary  purpose,   to   be   returned   to   the   owner  when  the 
purpose    is    fulfilled.      Some    writers    give    five    kinds    of 
bailment,  but   Story's  classification  is  simpler.     He  gives 
three:    (1)    Bailment   for  the  benefit  of  the  bailor.      (2) 
For   the  benefit   of   the  bailee.      (3)    For  the   benefit   of 
both.     The  degree  of  care  to  be  exercised  by  the  bailor 
depends    upon    the    character    of    the    bailment    and    the 
character    of   the    article    bailed.      A    mere    borrower    of 
another's  property,  who  is  to  make  no  return  for  the  use 
of  it  and  is  a  bailee   for  his  own  benefit,  is  held  to  the 
exercise  of  the  highest  degree  of  care,  or  extreme  care. 
One  who  hires  a  horse  from  another  is  a  bailee  for  the 
benefit  of  both  parties,  and  is  not  required  to  exercise  so 
high  degree  of  care  as  a  bailee  for  his  own  benefit,  but 
the  care  must  be  such  as  a  prudent  person  would  exer- 
cise   with    reference    to    his    own    property,    or    what    is 
called    ordinary    care.      Where    property    is    left    by    the 
owner  with  another  for  safe  keeping,  without  paying  or 
agreeing  to  pay  therefor,  it  is  a  bailment  for  the  exclusive 
benefit  of  the  bailor,  and  only  a  slight  degree  of  care  is 
required  of  the  bailee.     Of  course,  one  is  not  bound  to 
become  a  gratuitous  bailee,  and  a  promise  to  become  such 
is  not  binding,  but  if  goods  are  received  by  a  gratuitous 
bailee  he  must  care   for  them  according  to  his  promise. 
A  common  carrier  is   a  bailee   who   is  bound   to  receive 
goods   and   deliver  them   where   directed   without   loss   or 
injury  unless  prevented  by  the  act  of  God  or  the  public 
enemy.     A  carrier  who  does  not  hold  himself  out  to  carry 
for  the  public,  but  only  occasionally  transports  goods  for 


310  ELEMENTARY    LAW  [§  502 

hire,  is  not  a  common  carrier,  and  is  only  held  to  the 
exercise  of  ordinary  care.  An  innkeeper  is  a  bailee  who 
insures  the  safety  of  his  guests'  goods,  just  as  a  common 
carrier  does. 

A  mechanic  who  receives  material  to  be  hiade  into  an 
article,  or  receives  an  article  needing  repairs,  is  a  bailee 
who  is  bound  to  use  reasonable  diligence  in  completing 
the  work  and  restoring  the  article  to  the  owner.  He 
may,  however,  demand  pay  for  his  work  and  keep  possession 
of  the  article  until  his  reasonable  charges  are  paid.  A 
warehouseman  is  a  bailee  who  can  retain  possession  of 
property  put  in  his  care  until  his  storage  charges  are  paid. 
A  pledgee,  or  a  pawnbroker,  is  a  bailee  who  holds  per- 
sonal property  as  security  for  a  debt,  and  may  retain 
it  until  the  debt  is  paid  or  payment  tendered.  If,  after 
a  bailee  has  received  property,  a  third  party  claims  it, 
the  bailee  may  refuse  to  deliver  to  either  until  the  con- 
troversy is  settled  between  the  rival  claimants,  and  he 
may  bring  his  action  of  interpleader,  in  which  the  claim- 
ants may  be  required  to  come  into  court  and  try  the 
question  of  the  title  or  right  to  possession  of  the  prop- 
erty in  the  possession  of  the  bailee. 

§  502.  Contracts  of  common  carriers. — The  con- 
tracts of  common  carriers  relate  to  persons,  as  well  as 
personal  property,  and  the  subject  of  their  rights  and 
liabilities  calls  for  a  more  extended  treatment  than  could 
be  properly  given  to  it  under  the  head  of  bailment.  Rail- 
way, steamboat  and  ship  companies,  and  all  other  public 
agencies  for  transporting  goods  or  persons  for  hire,  are 
in  law  common  carriers.  The  contract  of  a  common 
carrier  of  goods  is  to  receive  and  promptly  transport  the 
property  entrusted  to  him,  to  the  place  of  destination, 
he  being  responsible  for  all  loss  or  damage  which  hap- 
pens to  the  goods  while  in  his  care,  unless  such  loss  or 


§  502]         SALES   AND  OTHER   PARTICULAR   CONTRACTS  311 

damage    Is    caused    by    the    act    of    God    or    the    piibHc 
enemy. 

As  a  carrier  of  persons,  he  is  held  to  the  highest 
degree  of  care  for  their  safety.  By  holding  himself  out 
as  a  common  carrier  of  passengers,  he  undertakes  to 
receive  all  proper  persons  who  present  themselves  for 
transportation,  and  to  carry  them  safely  to  their  destina- 
tion, upon  their  paying  or  tendering  to  him  the  customary 
fare  for  such  service.  And  if  he  receives  as  a  passen- 
ger one  w^ho  is  to  be  carried  gratuitously,  he  must  exer- 
cise the  same  care  for  such  passenger  as  if  he  paid  full 
fare.  The  same  obligation  as  to  care  applies  to  persons 
v^hom  he  receives  from  other  connecting  lines  of 
transportation,  and  to  travelers  who  get  upon  the  wrong 
railway  train  by  mistake.  Carriers  are  not  insurers  of 
the  safety  of  their  passengers.  If  the  passenger  is 
injured  or  killed,  through  unavoidable  accident,  as  where 
injury  or  death  results  from  defects  in  machinery  or  ap- 
pliances which  could  not  have  been  discovered  by  the 
exercise  of  the  highest  degree  of  care,  or  if  the  injury 
or  death  results  from  the  act  of  God,  as  where  by  a 
tornado  an  obstruction  is  thrown  in  front  of  a  locomo- 
tive engine,  the  carrier  is  not  liable,  unless  there  is  some 
concurring  negligence  on  his  part.  Ordinarily,  a  passen- 
ger who  is  injured  by  a  third  person,  not  in  the  employ 
of  the  carrier,  has  no  claim  upon  the  carrier,  but  if, 
through  the  negligence  of  the  carrier's  employes,  a  dan- 
gerous person,  as  a  lunatic  or  a  drunken  man,  kills  or 
injures  a  fellow  passenger,  the  carrier  is  liable.  The 
carrier  has  a  right  to  make  reasonable  rules  regulating 
the  conduct  of  passengers,  and  if  a  passenger  with  notice 
of  these  rules  violates  them  and  puts  himself  in  a  place 
of  danger,  and  injury  results  to  him  on  account  of  his 
misconduct,  he  has  no  claim  for  damages. 


PART  VI 


PARTNERSHIP  AND   CORPORATIONS 

CHAPTER  XXXVIII 

PARTNERSHIP 

Sec.  Sec. 

503.  Definition.  509.     Individual  and  partnership 

504.  Authority,  and  liability  of  creditors. 

partners.  510.     Rights    of    partners    after 

505.  Formation  of  partnership.  dissolution. 

506.  Rights  of  partners.  511.     Limited  partnership. 

507.  Deeds  of  partners.  512.     Good  will. 

508.  Dissolution  of  partnership. 

§  503.  Definition. — Partnership,  as  defined  by  Kent, 
"is  a  contract  of  two  or  more  competent  persons,  to 
place  their  money,  effects,  labor,  and  skill,  or  some  or 
all  of  them,  in  lawful  commerce  or  business,  and  to 
divide  the  profit  and  bear  the  loss,  in  certain  proportions." 

§  504.     Authority    and    liability    of    partners. — Each 

partner  is  the  general  agent  for  all  the  others,  and  may 
bind  them  by  any  contract  which  he  may  make  within 
the  scope  of  the  partnership  business.  If  a  member  of 
a  firm  of  dry  goods  merchants  buys  real  estate  for  pur- 
poses of  speculation  in  the  firm  name,  it  will  not  bind 
his  copartners,  and  so  of  all  ventures  not  within  the 
scope  of  the  firm's  business.  As  between  the  partners 
themselves  they  may  limit  the  powers  and  fix  the  duties 
of  one  another  by  agreement,  and  a  violation  of  such 
agreement   resulting   in  loss   to   the   other  partners   would 

312 


s 


505]  PARTNERSHIP  313 


make  the  wrongdoer  liable  in  damages  to  his  copartners. 
A  nominal  partner  is  one  who  allows  his  name  to  be 
used  by  the  firm,  but  has  no  interest  in  the  profits;  his 
liability  for  the  firm's  debts,  however,  is  the  same  as 
that  of  the  real  members  of  the  firm.  A  silent  partner  is 
one  who  has  an  interest  in  the  firm  which  is  unknown 
to  the  public.  He  may  share  in  the  profits,  and  he  is 
liable  for  all  the  debts  of  the  firm.  \\'hen  a  partner 
retires  from  the  firm  and  wishes  to  avoid  future  liability 
for  its  debts,  he  must  give  actual  notice  of  the  fact  to 
all  customers  of  the  firm,  and  notice  to  the  public  by 
printing  the  same  in  some  newspaper  of  general  circula- 
tion in  the  locality  where  the  business  has  been  conducted. 
If  one  holds  himself  out  as  a  partner,  and  persons  deal 
with  the  firm  on  the  faith  of  it,  he  is  held  liable  to  such 
persons  for  the  firm  debts,  though  he  was  not  a  partner 
in  fact. 

§  505.  Formation  of  partnership. — To  form  a  part- 
nership it  is  not  necessary  that  the  contract  should  be  in 
writing,  and  if  there  is  no  agreement  to  the  contrary,  the 
partners  are  presumed  to  be  equal,  and  the  partnership 
is  presumed  to  begin  at  the  date  of  the  agreement.  Part- 
nership contracts  may  be  made  for  the  carrying  on  of 
any  lawful  business.  Inequality  of  skill,  industry,  ability 
or  attention  to  the  business  will  not  increase  or  diminish 
a  partner's  share  of  the  profits  unless  the  agreement 
between  the  partners  makes  provision  for  it,  and  unless 
it  is  so  agreed  no  partner  is  entitled  to  anything  but  his 
share  of  the  profits  as  a  compensation  for  his  services. 
One  may  sometimes  share  in  the  profits  without  incurring 
liability  as  a  partner,  as  where  a  salesman  or  an  agent 
agrees  to  take  as  a  compensation  for  his  services  a  sum 
equal  to  a  certain  percentage  of  the  profits. 


314  DI^EMENTARY    LAW  [§  506 

§  506.  Rights  of  partners. — Partners  can  not  deal 
with  the  partnership  property  for  their  individual  benefit 
to  the  injury  of  the  creditors  of  the  firm  or  of  their  co- 
partners. If  one  partner  has  made  advances  or  incurred 
liabilities  for  the  firm,  his  claim  upon  the  firm's  assets 
and  property  will  have  priority  over  a  chattel  mortgage 
given  by  another  partner  to  secure  his  individual  debt. 
Partners  are  in  some  respects  trustees  for  each  other. 
They  can  not  make  profit  to  themselves  individually  at 
the  expense  of  the  partnership,  and  are  bound  to  make 
full  disclosures  to  each  other.  In  some  respects  a  part- 
ner acts  as  agent  for  the  partnership,  and  there  exists 
between  him  and  his  partners  the  reciprocal  duties  of 
principal  and  agent. 

§  507.  Deeds  of  partners. — Real  estate  owned  by 
a  partnership  for  partnership  purposes  can  be  trans- 
ferred by  a  conveyance  in  which  all  the  partners  should 
unite  as  grantors.  If  it  is  desired  that  one  should  act 
for  all,  his  authority  should  be  evidenced  by  a  power  of 
attorney  executed  by  his  copartners.  And  while  it  is 
not,  as  a  rule,  necessary  to  have  the  wives  of  the  part- 
ners join  their  husbands  in  such  conveyances,  it  is  the 
safer  practice  to  have  them  do  so. 

§  508.  Dissolution  of  partnership. — A  partnership 
may  be  dissolved  in  various  ways,  as :  (1)  By  the  death 
of  one  of  the  partners.  Sometimes  the  articles  of  part- 
nership provide  that  the  representative  of  the  deceased 
partner  may  continue  the  business,  or  that  the  capital 
of  the  deceased  partner  shall  remain  for  a  limited  time 
in  the  firm  business.  (2)  By  the  transfer  of  the  interest 
of  one  partner.  (3)  By  the  voluntary  withdrawal  of  a 
partner  from  tlie  firm.  Though  the  partnership  agree- 
ment may  fix  the  duration  of  the  partnership,  any  part- 


§  509]  PARTNERSHIP  31i 

ner  may  dissolve  it  by  retiring  before  tiie  expiration  of 
the  time.  If  his  conduct  in  so  doing  is  wrongful  and 
results  in  loss  to  his  copartners,  they  may  recover  dam- 
ages from  him  for  breach  of  his  contract.  (4)  Insanity 
or  insolvency  of  a  partner.  (5)  By  the  mutual  consent 
of  the  partners.  (6)  The  sale  of  tlie  whole  property 
invested  in  the  partnership  business.  (7)  The  hopeless 
insolvency  of  the  firm.  (8)  The  occurrence  of  some 
event  which  makes  the  business  of  the  partnership  illegal. 
The  court  may  decree  a  dissolution  at  any  time  when 
the  interest  of  the  partners  or  the  firm  creditors  re- 
quire it. 

The  practical  effect  of  the  dissolution,  from  whatever 
cause,  is  the  same.  If  the  partners  can  agree  upon  a 
method  of  winding  up  the  business  after  dissolution, 
and  creditors  do  not  object,  it  may  be  done  in  that  way. 
If  creditors  or  any  partner  objects  the  court  will  appoint 
a  receiver,  whose  duty  it  will  be  to  sell  the  assets,  pay 
the  creditors  and  expenses  of  the  receivership,  and  dis- 
tribute the  surplus  among  the  partners  according  to  their 
respective  interests. 

Where  a  dissolution  results  from  the  death  of  one  of 
the  partners,  the  surviving  partners  are  clothed  by  the 
law  with  authority  to  settle  the  firm's  affairs,  and  the 
personal  representatives  of  the  deceased  partner  can  not 
meddle  with  the  firm's  affairs  unless  there  is  mismanage- 
ment on  the  part  of  the  surviving  partners.  Most  of 
the  states  have  statutes  providing  for  the  settlement  of 
the  partnership  business  by  surviving  partners,  requiring 
them  to  file  inventories  in  court,  to  give  bond,  and  to 
make  reports  of  their  doings,  as  in  case  of  administrators 
and  executors. 

§  509.     Individual  and  partnership  creditors.— Ques- 
tions   arise     concerning    the    conflicting    claims    of    the 


316  ELEMENTARY    LAW  [§510 

creditors  of  the  firm  and  the  individual  partners  to  par- 
ticipate in  the  assets  of  the  partnership,  and  of  the  part- 
ners individually.  The  equitable  rule  is  followed  in  all 
the  courts,  that  firm  creditors  must  look  first  to  firm 
assets,  and  individual  creditors  to  the  assets  of  the  indi- 
vidual members  of  the  firm.  If  there  is  a  surplus  of 
the  firm"  assets  after  paying  firm  creditors,  and  a  defici- 
ency of  individual  assets  to  pay  individual  creditors,  these 
creditors  may  resort  to  the  share  of  the  surplus  which 
would  be  going  to  the  partner  against  whom  they  hold 
unsatisfied  claims;  so  may  firm  creditors,  after  exhausting 
firm  assets,  resort  to  what  may  remain  of  individual 
assets  after  the  discharge  of  individual  debts. 

§  510.     Rights    of   partners    after    dissolution. — The 

dissolution  of  the  firm  puts  an  end  to  the  power  of  the 
partners  to  bind  their  copartners  to  any  new  engagements, 
except  so  far  as  it  may  be  necessary  or  proper  in  clos- 
ing up  the  firm's  business.  Where  one  partner  retires 
and  the  remaining  partners  assume  the  firm  debts,  the 
retiring  partner  may  be  held  by  the  creditors,  but  if  he 
is  compelled  to  pay  he  would  have  the  same  rights 
against  his  former  partners  that  a  surety  who  had  paid 
a  debt   would   have   against   his   principal. 

§511.  Limited  partnership. — We  have  been  speak- 
ing of  general  partnerships,  in  which  each  and  all  of  the 
partners  are  individually  liable  for  all  the  debts  of  the 
firm.  Limited  partnerships  are  creatures  of  statutory 
law.  They  are  partnerships  in  which  the  pecuniary 
responsibility  of  some  of  the  partners  is  limited  to  a  fixed 
sum.  Persons  wishing  to  embark  their  means  in  such 
ventures  are  required  to  comply  strictly  with  the  provi- 
sions  of   the  law   authorizing  their   formation. 


§  512]  PARTNERSHIP  317 

§  512.  Good  will. — The  good  will  of  the  partner- 
ship goes  to  the  surviving  partners  in  case  of  dissolution 
by  death,  and  where  one  partner  disposes  of  his  interest 
to  his  copartners,  his  interest  in  the  good  will  goes  with  it. 


CHAPTER  XXXIX 


CORPORATIONS 


Sec. 

Sec. 

513. 

Definition. 

520. 

514. 

Nature  of  corporations. 

521. 

515. 

Powers  of  corporations. 

522. 

516. 

Organization    of    corpora- 
tions. 

523. 

517. 

The  charter. 

524. 

518. 

Contracts  of  corporations. 

519. 

Rights  of  stockholders. 

Dissolution. 

Vested  rights. 

Deeds  of  corporations. 

Fraud  by  officers  of  the 
corporation. 

Public  service  corpora- 
tions. 


§  513.  Definition. — A  corporation  is  a  body  con- 
sisting of  one  of  more  persons,  established  by  or  under 
the  authority  of  the  law,  for  certain  specific  purposes, 
with  the  capacity  of  succession  (either  perpetual  or  for 
a  limited  period)  and  other  special  privileges  not  pos- 
sessed by  individuals  yet  acting  in  many  respects  as  an 
individual.  Corporations  are  either  sole,  consisting  of 
one  member  at  a  time,  or  aggregate,  consisting  of  more 
than  one  member.  A  public  corporation  is  created  for 
the  purpose  of  carrying  on  some  public  business,  such 
as  towns,  cities,  counties.  A  private  corporation  is 
formed  by  the  voluntary  act  of  individuals  for  their  own 
convenience  or  profit,  such  as  banking  companies,  turn- 
pike and  railway  companies.  These  are  in  a  sense  pub- 
lic, for  they  render  service  to  the  public,  but  they  are 
distinguished  from  public  corporations  by  the  fact  that  the 
latter  are  founded  by  the  government  for  public  purposes 
alone.  There  is  another  class  designated  as  public  quasi 
corporations,  which  have  some  of  the  attributes  of  ordi- 
nary corporations,  as  boards  of  school  commissioners, 
boards  of  county  commissioners,  boards  for  the  equaliza- 

318 


§  514]  CORPORATIONS  319 

don  and  assessment  of  taxes,  boards  of  supervision  of 
poorhouses,  etc.  Joint  stock  companies,  formed  for  the 
purpose  of  carrying  on  commercial  or  manufacturing 
enterprises,  which  have  all  the  features  of  a  partnership, 
except  that  there  is  a  substitution  of  a  stockholder's 
liability  for  the  ordinary  liability  of  partners,  are  quasi 
corporations. 

§  514.  Nature  of  corporations. — The  fact  that  a  cor- 
poration is  a  legal  entity,  having  rights,  liabilities  and 
powers,  different  from  those  of  its  members,  forms  the 
basis  of  the  law  of  corporations.  The  legal  attributes 
that  make  a  corporation  an  especially  advantageous  form 
of  business  organization  are  the  limited  liabilities  on  the 
part  of  its  members,  and  the  continuity  of  its  existence 
notwithstanding  changes  in  membership.  When  a  group 
of  persons  are  incorporated  it  means  that  the  state  has 
given  to  that  group  a  legal  personality  and  that  the  per- 
sonality has  an  existence  apart  from  its  members.  When 
a  group  of  men  enter  into  a  joint  undertaking  through 
the  organization  of  a  partnership,  all  of  their  property 
is  subjected  to  the  risks  of  the  venture,  for  a  partner  is 
personally  liable  for  the  debts  of  the  partnership.  In  a 
corooration,  however,  each  member  is  liable  to  lose  only 
the  amount  of  money  he  puts  into  the  given  undertaking 
and  the  rest  of  his  estate  is  in  no  way  jeopardized.  Thus 
the  modern  corporation  makes  possible  many  venture- 
some undertakings  into  which  men  would  be  unwilling 
to  enter  under  the  legal  liabilities  attaching  to  partnership 
activities.  Also  the  modern  corporation  makes  it  possible 
fcr  a  far  greater  number  of  individuals  to  combine  their 
capital  and  efforts  in  a  common  undertaking  than  would 
be  possible  under  the  more  cumbersome  form  of  part- 
nership organization. 

The    advantages    of    the    continuity    of    existence    are 


320  ELEMENTARY    LAW  [§515 

obvious.  In  a  partnership,  whenever  a  partner  dies  or 
sells  his  interest  the  partnership  is  dissolved.  Where 
many  persons  are  involved  in  a  great  undertaking  cover- 
ing a  long  period  of  time  this  would  materially  impair 
efficiency  and  hinder  progress.  These  considerations  have 
brought  the  corporation  into  being  and  explain  its  re- 
markable growth.  The  purpose  of  the  law  is  to  con- 
serve the  benefits  of  this  form  of  business  organization 
and  at  the  same  time  to  guard  against  certain  inevitable 
abuses  growing  out  of  the  nature  of  the  organization. 

§  515.  Powers  of  corporations. — The  powers  of  a 
corporation  are  restricted  to  the  limits  prescribed  by  the 
law  under  or  by  which  it  is  created.  (1)  A  corporation 
should  have  a  name  by  which  to  make  contracts,  to  take, 
hold  and  dispose  of  property,  and  by  which  to  sue  and 
be  sued.  (2)  It  should  have  a  corporate  seal.  (3)  It 
should  have  a  fixed  place  of  business  for  the  general 
management  of  its  aflfairs.  (4)  It  may  make  its  own  by- 
laws,   and    appoint    and   remove    its    agents   and   officers. 

(5)  It  should  have  power  to  hold  such  property  as  is 
necessary   for   the  achievement   of   its   corporate   purpose. 

(6)  It  should  have  authority  to  make  all  such  contracts 
and  agreements  as  are  reasonably  necessary  to  carry  out 
the  purposes  of  the  organization. 

§  516.  Organization  of  corporations. — The  power  to 
create  corporations  is  vested  in  the  legislative  department 
of  the  government.  The  practice  and  power  of  creating 
corporations  by  special  legislative  enactments  has  fallen 
into  disuse,  or  been  abolished  in  most  of  the  states.  Gen- 
eral laws  are  passed,  under  which  corporations  are  organ- 
ized by  the  voluntary  agreement  of  individuals.  The 
manner  in  which  corporations  are  organized  is  determined 
by  the  statutes  of  each  state.     Ordinarily  articles  of  in- 


§  517]  CORPORATIONS  321 

corporation  signed  and  acknowledged  by  the  requisite 
number  of  persons  are  filed  in  some  public  office.  These 
articles  give  the  name  of  the  corporation,  state  the  object 
of  its  formation,  designate  the  place  where  it  proposes  to 
carry  on  its  business,  fix  the  amount  of  capital  stock  and 
the  denomination  of  the  shares  of  stock,  the  names  and 
residences  of  the  stockholders,  and  the  names  of  the 
directors  who  are  to  manage  the  affairs  of  the  corpora- 
tion for  the  first  year.  When  these  articles,  so  prepared, 
signed  and  acknowledged,  are  lodged  in  the  proper  office, 
the  corporation  begins  its  existence.  If  any  of  its  mem- 
bers assume  to  contract  or  act  as  a  corporation  before 
these  requisite  formalities  have  been  complied  with,  such 
acts  are  not  corporate  acts,  though  they  may  bind  the 
individuals  who  have  so  acted.  A  corporation  is  con- 
sidered to  be  a  person  in  the  state  under  whose  laws  it 
is  created,  and  if  it  wishes  to  exercise  corporate  powers 
in  another  state,  it  must  submit  to  and  obey  such  laws 
and  restrictions  as  may  be  imposed  by  the  laws  of  that 
state. 

A  state  may  refuse  to  recognize  a  corporation  organ- 
ized under  the  laws  of  another  state  and  refuse  to  per- 
mit it  to  do  intrastate  business  within  its  borders,  and  con- 
sequently it  may  impose  any  conditions  it  sees  fit  upon 
any  foreign  corporations  entering  the  state  regardless  of 
how  unreasonable  and  arbitrary  the  conditions  may  be. 
It  can  not,  however,  prevent  or  hinder  a  foreign  cor- 
poration from  engaging  in  interstate  business  within  its 
territory. 

§  517.  The  charter. — The  charter,  or  law  under 
which  a  corporation  is  organized,  is  the  measure  of  its 
powers.  In  construing  such  charters  and  laws  the  courts 
have  extended  the  powers  of  corporations  to  all  such 
matters  as  are  essential  to  preserve  their  existence  and 
21 — Elem.  Law. 


322  EI^EMENTARY    LAW  [5 


K1Q 


to  accomplish  the  purposes  of  their  creation.  The 
enumeration  of  specific  powers  imphes  the  exclusion  of 
others.  A  corporation  can  not  engage  in  any  business 
which  it  has  not  been  authorizecj  to  do  by  its  charter. 
Should  the  officers  of  the  corporation  .attempt  to  engage 
in  such  a  business  they  could  be  enjoined  by  the  stock- 
holders. Such  acts  are  said  to  be  ultra  vires  and  con- 
tracts made  in  support  of  them  would  not  be  binding  on 
the  corporation.  Thus  a  corporation  organized  and  char- 
tered for  the  purpose  of  engaging  in  manufacturing 
could  not  engage  in  the  banking  business.  Any  attempt 
to  do  so  would  be  ultra  vires. 

§  518.  Contracts  of  corporations. — The  power  of  a 
corporation  to  make  contracts  is  limited  by  the  charter 
creating  it,  or,  where  it  is  organized  under  a  general  law, 
by  the  terms  of  that  law.  A  contract  entered  into  by 
a  corporation  beyond  the  power  so  conferred  is  void,  it 
being  ultra  vires.  It  is  manifest  that  a  corporation,  being 
an  artificial  person,  can  only  contract  by  and  through  its 
agents,  and  the  powers  of  these  agents  are  determined 
by  the  laws  of  the  state,  or  the  articles  and  by-laws  of 
the  corporation,  or  they  may  be  implied  from  the  nature 
and  functions  of  the  officer  or  agent  who  acts  for  the 
corporation.  It  was  an  old  rule  of  law  that  a  corporation 
could  only  contract  under  its  corporate  seal,  but  the 
necessities  of  commerce  have  led  to  an  abrogation  of  the 
rule,  so  now  it  may  be  said  that  within  its  powers  to 
make  contracts  it  may  make  them  in  any  manner  that  a 
partnership  or  natural  person  may.  It  has  been  said  that 
a  contract  of  a  corporation  not  within  its  charter  or 
lawful  powers  is  void,  but  this  must  be  understood  with 
the  equitable  qualification  that  where  such  contract  has 
been  executed  so  that  the  corporation  has  received  the 
consideration,  and  is  unwilling  or  unable  to  return  it,  it 


§  521]  CORPORATIONS  323 

will   not  be   heard   to   deny  the  validity   of  the   contract. 
If  it  would  rescind,  it  must  first  do  equity. 

§519.  Rights  of  stockholders.— The  control  of  the 
corporate  business  is  generally  vested  in  the  board  of 
directors  who,  in  turn,  are  usually  elected  by  the  stock- 
holders, each  stockholder  having  as  many  votes  as  he 
owns  shares  of  stock.  In  operating  the  business  of  the 
corporation  the  majority  rules  in  cases  of  disagreement, 
but  the  majority  must  abide  by  the  terms  of  the  charter 
and  by-laws  and  must  act  in  good  faith  and  without 
fraud,  else  the  minority  stockholders  may  obtain  relief  in 
equity.  To  secure  the  individual  stockholder  in  the  en- 
joyment of  his  rights,  the  law  generally  provides  that  he 
shall  receive  a  certificate  of  stock  from  the  corporation 
representing  his  interest  therein,  that  he  shall  have  the 
right  to  vote  and  participate  in  the  stockholders'  meetings, 
that  he  be  permitted  to  inspect  the  books  of  the  com- 
pany when  he  desires  to  do  so  in  good  faith  and  for  a 
proper  purpose,  and  that  he  share  in  the  dividends  when 
they  are  declared.  The  law  will  see  to  it  that  he  is  not 
denied  these  rights. 

§  520.  Dissolution. — The  existence  of  a  corpora- 
tion may  be  determined:  (1)  By  the  expiration  of  the 
time  limited  for  its  duration.  (2)  By  valid  laws  repeal- 
ing the  laws  under  which  it  was  organized.  (3)  By 
voluntary  dissolution  or  the  abandonment  of  the  purpose 
for  which  it  was  organized.  (4)  By  a  decree  of  for- 
feiture at  the  suit  of  the  state  for  misuser  or  nonuser 
of  its  powers  and  privileges. 

§  521.  Vested  rights. — It  is  a  settled  rale  ^f  law 
that  when  a  private  corporation  is  once  formed  according 
to  law,  it  has  the  right  to  the  free  use  of  all  the   fran- 


324  ELEMENTARY    LAW  [§  522 

chises,  powers  and  privileges  conferred  upon  it  by  the 
laws  in  force  when  it  came  into  existence,  and  that  the 
provisions  of  the  Constitution  of  the  United  States  pro- 
hibiting all  legislation  which  impairs  the  obligation  of 
contracts  protects  it  in  the  enjoyment  of  these  rights. 
The  assertion  and  enforcement  of  this  rule,  which  im- 
posed severe  restrictions  upon  the  legislative  power,  has 
led  to  a  radical  change  in  the  legislation  of  the  various 
states,  and  now  it  is  the  practice  to  insert  in  all  laws 
authorizing  the  formation  of  corporations  a  clause  reserv- 
ing the  right  of  the  legislature  to  amend,  alter  or  repeal 
such  laws.  Where  a  corporation  charter  is  repealed,  how- 
ever, the  right  of  the  stockholders  to  the  property  must 
be  preserved,  else  it  will  be  void  as  a  taking  of  property 
without  due  process  of  law. 

§  522.  Deeds  of  corporations. — Corporations,  if  by 
their  charters  they  may  hold  real  estate,  may  convey  the 
same,  under  the  corporate  seal  and  by  the  officer  desig- 
nated in  the  laws  of  the  corporation  to  sign  the  deed  in 
its  name. 

§  523.  Fraud  by  officers  of  the  corporation. — Offi- 
cers of  corporations  occupy  the  relation  of  trustees  and 
agents  to  both  the  corporation  itself  and  to  the  individual 
stockholders,  and  they  are  held  to  discharge  their  duties 
with  the  fidelity  and  integrity  required  of  other  trustees 
or  agents.  Wherever  a  fraud  is  committed  by  them, 
the  right  of  action  to  redress  the  same  is  in  the  cor- 
poration, if  the  wrong  affects  the  corporate  body  as  a 
whole,  or  in  individual  stockholders  if  the  wrong  is  to 
individual  interests.  In  equity  the  suit  for  a  corporate 
wrong  may  be  brought  by  individual  stockholders  for  the 
benefit  of  all,  if  the  wrongdoers  are  the  governing  officers 


§  524]  CORPORATIONS  325 

themselves,  or  if  the  governing  officers  refuse  to  bring 
the  suit. 

Among  the  frauds  that  may  be  committed  by  cor- 
porate officers  for  which  the  stockholders  may  have  re- 
dress are  the  following^: 

Where  the  governing  officers  persistently  and  know- 
ingly exceed  the  corporate  powers. 

Where  the  officers  refuse  to  furnish  proper  informa- 
tion or  give  false  statements. 

Where  access  to  the  books  of  the  corporation  is 
denied. 

Where  governing  officers  become  purchasers  from  or 
sellers  to  the  corporation,  to  its  detriment. 

Where  the  governing  officers  allow  secret  advantages 
to  part  of  the  stockholders  or  themselves,  to  the  injury 
of  other  stockholders,  or  where  they  misuse  or  waste  the 
assets. 

§  524.  Public  service  corporations. — There  is  a 
class  of  duties  that  are  assumed  by  private  persons  or 
corporations,  frequently  in  consideration  of  the  grant  to 
them  of  certain  privileges  at  the  hands  of  the  state. 
These  duties  are  generally,  if  not  wholly,  for  the  primary 
benefit  of  individuals  of  the  community,  rather  than  for 
the  benefit  of  the  public  as  a  whole.  Among  these  are 
the  duties  of  common  carriers,  innkeepers,  water  com- 
panies and  gas  companies.  Such  persons  or  corporations 
are  bound  to  permit  the  enjoyment  of  their  privileges  to 
all  individuals  of  the  community  upon  impartial  regula- 
tions and  for  a  reasonable  consideration,  and  for  a  viola- 
tion of  such  duties  they  may  be  held  liable  at  the  suit 
of  an  individual  specially  injured.  Where,  as  in  case  of 
railroads,  water  and  gas  companies,  valuable  public 
rights  have  been  granted  to  the  person  or  corporation, 
the  courts  may  sometimes  compel  by  mandamus  the 


2)26  ELEMENTARY    LAW  [§  524 

performance  of  the  public  duty.  There  is,  however,  a 
margin  of  discretion  within  which  there  may  be  reason- 
able discrimination.  For  example,  a  common  carrier  or 
innkeeper  may  exclude  a  person  who  is  dangerous,  or 
offensive  to  the  sense  of  decency  of  others.  Separate 
accommodations  may  be  lawfully  maintained  for  women 
and   for  men. 


PART  VII 


THE  LAW  OF  PRINCIPAL  AND  AGENT  AND 
OF  MASTER  AND  SERVANT 

CHAPTER  XL 
PRINCIPAL  AND  AGENT 

Sec  Sec 

525.  Principal     and     agfent     and     529.    Undisclosed   principal. 

master  and  servant  530.    Duties     between     principals 

526.  Agency  in  generaL  and  agents. 

527.  Authority     of     agents     in      531.    Termination  of  agency. 

special   calling.  532.    Powers  of  attorney. 

528.  When     principal    is    bound 

by  act  of  his  agent 

§  525.  Principal  and  agent  and  master  and  servant 
in  general. — Agency  in  its  broadest  sense  means  that 
relationship  that  is  established  when  one  person  acts  for 
or  represents  another.  Most  of  the  things  that  men 
may  do  they  may  do  through  agents  or  servants.  A  cor- 
poration must  of  necessity  act  through  agents  only.  The 
same  is  true  of  the  state  in  which  case  the  agents  are 
called  public  officers.  In  the  present  age  of  gigantic 
business  enterprise  single  firms  employ  hundreds  and 
even  thousands  of  employes  to  act  for  them  in  one 
capacity  or  another.  Consequently  this  relationship, 
usually  created  by  contract,  has  become  of  great  practical 
importance  and  a  rather  definite  set  of  legal  rules  has 
been  developed  in  relation  thereto. 

The  law  of  agency  in  its  broad  sense  is  divided  into 
two  branches,  principal  and  agent  and  master  and  servant 

327 


328  ELEMENTARY    I,AW  [§  526 

The  first  has  to  do  with  that  relationship  where  the 
representative  is  engaged  in  making  contracts  for  his 
employer.  Here  there  are  three  parties  concerned,  the 
principal,  the  agent  and  the  third  party  with  whom  the 
agent  deals  for  his  principal.  The  second  branch  deals 
with  those  relationships  where  the  representative  performs 
labor  or  mechanical  acts  for  his  employer.  Primarily 
only  two  persons  are  involved  in  this  relationship,  but 
should  the  servant  injure  some  third  party  while  in  the 
course  of  his  employment  then  three  persons  become 
involved. 

The  main  problems  presented  by  this  division  of  the  law 
are  the  determination  of  when  a  principal  or  master  is  liable 
to  third  parties  for  the  representations  or  acts  of  his  agent 
or  servant,  and  what  are  the  rights  and  duties  between 
principal  and  agent  and  master  and  servant   respectively. 

§  526.  Agency  in  general. — Individuals  and  corpo- 
rations are  bound  by  contracts  made  in  their  behalf  by 
their  authorized  agents.  The  necessities  of  commerce 
demand  that  most  of  the  business  of  the  world  be  done 
through  agents.  Any  one  capable  of  acting  for  himself 
may  be  an  agent;  a  minor  of  sufficient  capacity  may  be 
an  agent  and  make  contracts  which  will  bind  his  principal. 
The  relation  of  principal  and  agent  may  be  created  by 
writing,  by  parol  or  it  may  be  implied  from  circumstances. 
In  some  states,  however,  where  the  contract  itself  must 
be  in  writing,  then  the  authority  to  the  agent  must  be 
in  writing.  Also  where  the  contract  must  be  under  seal 
as  in  the  case  of  conveyance  of  real  property,  the 
authority  must  be  granted  in  writing  and  under  seal. 
This  is  known  as  the  power  of  attorney.  An  agent  can 
not  assume  incompatible  duties;  he  can  not  be  agent  of 
buyer  and  seller  at  the  same  time,  unless  by  consent  of 
both  principals,  nor  can  he  be  employed  to  do  an  unlaw- 


§  527]  PRINCIPAL  AND   AGENT  329 

ful  act,  nor  to  act  in  place  of  another  in  a  matter  of 
personal  trust.  An  attorney,  an  author,  an  artist,  a 
physician,  whose  personal  skill  is  engaged,  can  not  sub- 
stitute an  agent  to  do  his  work.  So  generally  an  agent 
can  not  employ  a  substitute,  unless  expressly  or  impliedly 
authorized  to  do  so.  When,  however,  the  nature  of  the 
employment  and  the  magnitude  and  character  of  the  busi- 
ness calls  for  it,  he  may  employ  assistants  whose  acts  will 
bind  his  principal.  An  attorney  at  law,  an  attorney  in 
fact,  a  broker,  an  auctioneer,  a  factor,  a  partner,  a  ship's 
master,  a  ship's  husband,  these  are  all  agents  having 
power  to  bind  their  principals  in  matters  coming  within 
the  scope  of  their  respective  employments.  An  attor- 
ney at  law  is  an  agent  employed  to  conduct  and  manage 
an  action  at  law  or  suit  in  equity.  An  attorney  in  fact 
is  one  who  is  by  a  power  of  attorney  authorized  to  do 
some  specific  act  or  acts  for  his  principal.  A  broker  is 
one  whose  business  it  is  to  bring  together  parties  who 
desire  to  deal  with  one  another ;  he  is  the  agent  of  both  par- 
ties and  he  receives  by  way  of  compensation  a  commis- 
sion. An  auctioneer's  business  is  to  act  for  seller  and 
buyer  in  selling  goods  at  public  outcry.  When  a  sale  is 
closed  he  can  bind  both  parties  by  signing  a  memorandum 
of  the  terms.  A  factor  or  commission  merchant  is  one 
who  sells  goods  for  persons  who  make  consignments  to 
him. 

§  527.  Authority  of  agents  in  special  calling. — A 
ship's  husband  is  one  employed  by  the  owners  to  manage 
the  affairs  of  the  ship  while  it  is  at  a  home  port.  A 
ship's  master  has  similar  charge  of  the  ship  and  its  affairs 
while  prosecuting  its  voyage.  Partners  are  mutual  agents 
for  one  another  in  all  matters  pertaining  to  the  conduct 
of  the  partnership  business.  An  agent  may  act  generally 
in    some    particular    business,    in    which    case    he    has    a 


330  ELEMENTARY    LAW  [§  528 

liberal  discretion,  or  he  may  be  employed  to  do  a  specific 
thing  in  a  prescribed  way,  in  which  case  he  is  a  special 
agent.  Where  the  authority  under  which  an  agent  as- 
sumes to  act  is  in  writing  the  court  must  construe  it  and 
determine  its  extent;  where  the  agency  is  created  by  parol 
or  is  implied  from  circumstances  it  is  for  the  jury  to 
determine  whether  a  given  act  was  or  was  not  authorized 
by  the  principal.  An  authority  to  do  a  certain  thing 
carries  with  it  an  authority  to  make  use  of  all  the  usual 
and  necessary  means  to  effectuate  the  purpose  intended, 
as  where  an  agent  is  authorized  to  sell  property  he  may 
receive  the  money;  if  he  is  to  settle  losses  with  an  insur- 
ance company  he  may  arbitrate  the  claims;  if  he  is  to 
sell  a  chattel  he  may  warrant  it  as  to  quality  and  sound- 
ness— in  short,  the  authority  of  an  agent  covers  all  the 
settled  usages  of  trade  which  pertain  to  the  business  of 

his  agenqr. 

§  528.  When  principal  is  botind  by  act  of  his  agent. 
•—Where  persons  dealing  with  an  agent  know  that  his 
authority  is  in  writing,  they  are  bound  by  its  terms, 
whether  they  see  fit  to  examine  it  or  not  If  an  agent 
has  a  written  authority,  his  principal  can  not,  by  private 
or  secret  instructions  to  his  agent,  change  its  terms  so  as 
to  affect  those  who  deal  with  him.  It  sometimes  happens 
that  the  authority  is  ambiguous  in  its  terms,  and  the 
agent  has  no  opportunity  to  consult  his  principal.  If 
he  misconstrues  the  authority  in  good  faith,  his  principal 
is  bound  by  his  act  It  is  competent  for  the  principal 
to  enlarge  the  agent's  authority  by  subsequent  parol  in- 
structions. And  if  a  principal  by  words  or  acts  induces 
others  to  believe  that  the  agent's  authority  is  greater  than 
is  expressed  in  the  terms  of  the  appointment,  he  will  be 
[bound  by  the  agent's  acts  to  the  extent  that  his  conduct 
!has  led  others  to  deal  with  his   agent     The  authority 


§  530]  PRINCIPAI,  AND  AGENT  331 

of  the  agent  is  more  liberally  construed  when  it  is  to  be 
gathered  from  irregular  correspondence,  or  the  conduct 
of  the  parties,  than  where  it  is  particularly  defined  by  a 
written  instrument  prepared  for  the  purpose.  If  an  agent 
acts  in  excess  of  his  authority,  his  act  may  be  ratified 
by  the  acquiescence  of  the  principal.  If  by  the  usages 
of  a  bank  or  a  merchant,  cashiers  or  other  employes  are 
allowed  to  indorse  paper  and  do  other  acts  in  further- 
ance of  the  business  in  which  they  are  engaged,  the  princi- 
pal will  be  bound.  Declarations  of  an  agent  concerning 
the  transaction  in  which  he  is  acting  for  his  principal 
will  be  binding  on  the  principal,  if  made  at  the  time  and 
as  a  part  of  the  transaction.  But  after  the  business  is 
closed,  the  agent  can  make  no  such  binding  declarations. 
Factors  and  ships'  masters  may  in  case  of  urgent  need 
dispose  of  perishable  goods,  in  a  way  not  authorized  by 
the  owner.  They  may  also  incur  liabilities  that  will 
create  a  lien  upon  the  goods  and  fix  a  personal  responsi- 
bility upon  their  principal  also. 

§  529.  Undisclosed  principal. — Where  the  agent 
makes  the  contract  in  his  own  name  without  disclosing 
the  name  of  his  principal,  while  the  agent  is  himself 
liable,  the  principal  is  also  liable,  and  the  third  party  upon 
discovering  him  may  hold  him  liable  upon  the  contract, 
although  he  can  not  hold  both  the  agent  and  the  undis- 
closed principal.  He  must  elect  which  one  he  will  hold. 
So  the  principal  may  come  in  and  claim  the  benefits  of 
the  contract.  However,  if  the  principal  or  the  third  party 
have  settled  in  good  faith  with  the  agent,  they  are  thereby 
discharged  from  further  responsibility.  The  theory  of 
the  undisclosed  principal  is  not  applicable  to  contracts 
under  seal  nor  to  negotiable  instruments. 

§  530.     Duties  between  principals  and  agents. — The 


332  ELEMENTARY    LAW  [§  531 

relation  of  principal  and  agent  is  one  of  trust.  The  agent 
is  bound  to  the  same  degree  of  fidelity  and  good  faith  as 
any  other  trustee.  There  are,  however,  certain  addi- 
tional obligations  in  this  relation,  owing  to  the  fact  that 
both  principal  and  agent  have  reciprocal  duties  to  per- 
form, whereas  the  ordinary  relation  of  trustee  and  bene- 
ficiary calls  for  performance  of  duties  by  the  trustee  only. 
The  principal  owes  the  duty  to  the  agent  not  to  lead  him 
into  danger  or  loss.  For  instance,  a  master  is  liable  if 
he  subjects  his  servant  to  unknown  risks  in  machinery 
or  buildings,  and  a  principal  is  liable  if  he  causes  his 
agent  innocently  to  do  a  wrong  to  another  and  thereby 
incur  loss.  These  and  the  like  may  amount  to  frauds 
upon  the  servants  or  agents. 

The  duties  of  an  agent  can  not  ordinarily  be  delegated. 
In  making  contracts  for  his  principal,  he  should  disclose 
the  fact  that  he  is  an  agent,  otherwise  the  person  who 
deals  with  him  without  a  knowledge  of  that  fact  may 
treat  him  as  a  principal.  An  agent  who  takes  employ- 
ment from  another  contracts  for  the  use  of  reasonable 
skill  and  diligence  in  conducting  the  business  of  his  princi- 
pal, and  if  loss  occurs  from  the  fraud  or  insolvency  of 
a  customer,  he  will  not  be  liable,  if  he  exercised  such 
skill  and  diligence.  He  is  chargeable  with  all  profits  he 
may  make  on  investments  of  his  principal's  money,  and 
if  he  fails  to  account  promptly  for  moneys  received,  he 
may  be  chargeable  with  interest. 

§  531.  Termination  of  agency. — The  contract  of 
agency  may  be  determined :  ( 1 )  By  the  expiration  of  the 
time  limited  by  the  employment.  (2)  By  revocation  by 
principal,  except  in  cases  where  the  agent  has  an  inter- 
est in  the  business.  (3)  By  the  agent  renouncing  the 
agency.  (4)  By  death,  bankruptcy  or  insanity  of  princi- 
pal.    (5)  By  destruction  of  subject-matter,  as  where  one 


§  532]  PRINCIPAL  AND   AGENT  333 

is  custodian  of  buildings  which  are  destroyed.  (6)  By 
the  performance  of  the  task  for  which  the  agency  was 
created. 

§  532.  Powers  of  attorney. — A  person  holding  a 
power  of  attorney  for  the  purpose  should  not,  when  con- 
veying land,  affix  his  own  name,  but  the  name  of  the 
principal  to  the  conveyance.  Powers  of  attorney  author- 
izing the  conveyance  of  real  estate  should  be  signed  and 
acknowledged  and  recorded,  so  that  purchasers  dealing 
with  the  attorneys  may  know  the  extent  of  their  powers. 


CHAPTER  XLI 


MASTER  AND   SERVANT 


Sec. 

Sec. 

533. 

Growth  of  the  relation. 

543. 

534. 

Apprentices. 

535. 

Who   is   a   master   or   ser- 
vant? 

544. 

536. 

Independent  contractor. 

545. 

537. 

The    contract    between 

master  and  servant. 

546. 

538. 

Termination    of    the    rela- 

tion. 

547. 

539. 

Discharge   by  the   master. 

540. 

Abandonment  by  the  ser- 
vant. 

548. 

541. 

Wrongs     independent     of 

549. 

contract. 

550. 

542. 

Liability  of  third  persons 

551. 

to  the  master. 

552. 

Liability  of  third  persons 
to  the  servant. 

Master's  liability  for  in- 
jury to  others. 

Intentional  and  uninten- 
tional injuries. 

Servant's  liability  for  in- 
juries to  others. 

Master's  liability  to  the 
servant. 

Duties  of  master  to  ser- 
vant. 

Risks  assumed  by  servant. 

Fellow  servants. 

Vice  principal. 

Servant's  liability  to  mas- 
ter. 


§  533.  Growth  of  the  relation. — The  relation  of 
master  and  servant  may  exist  between  father  and  child, 
guardian  and  ward,  husband  and  wife,  or  in  fact  any 
persons  capable  of  contracting.  The  relation  arises  out 
of  contract  made  between  them,  by  which  the  master 
acquires  a  legal  authority  and  control  over  the  servant. 
Originally,  it  was  only  a  family  right  of  no  great  im- 
portance, the  servant  always  being  a  member  of  the  mas- 
ter's household.  But  with  the  vast  development  of  busi- 
ness enterprises,  the  relation  has  been  expanded  to  enor- 
mous dimensions,  and  is  now  one  of  the  most  important 
in  the  business  world.  It  applies  to  every  form  of  occu- 
pation in  which  one  person's  work  is  subject  to  the  con- 
trol and  direction  of  another  to  whom  he  is  responsible. 

334 


§  5351  MASTER  AND    SERVANT  335 

§  534.  Apprentices. — An  apprentice  is  one  who  is 
bound  out  to  a  master  to  learn  some  trade,  business  or 
profession,  the  master  being  also  bound  to  instruct  and 
initiate  him  in  the  occupation.  An  apprentice  may  be 
either  an  adult  or  a  minor.  So  far  as  an  adult  is  con- 
cerned, he  is  bound  by  whatever  contract  he  makes,  and 
his  rights  and  liabilities  must  be  determined  therefrom. 
So  far  as  infants  are  concerned,  the  matter  is  regulated 
by  statute  in  the  several  states  which  must  be  exactly 
followed.  It  is  usual  to  require  the  articles  of  apprentice- 
ship to  be  recorded,  and  they  must  be  signed  by  the 
parent  or  guardian,  or  in  their  absence  they  must  be 
approved  by  the  probate  court.  If  the  infant  is  over 
fourteen  years  of  age,  his  assent  and  signature  are  gen- 
erally required.  The  master  acquires  some  of  the  rights 
of  a  parent  over  the  infant  apprentice,  such  as  the  right 
of  moderate  restraint  and  punishment,  and  being  in  loco 
parentis  the  master  must  care  for  the  training,  health  and 
safety  of  the  apprentice.  In  other  respects,  the  rights 
and  liabilities  are  the  same  as  for  ordinary  masters  and 
servants. 

§  535.  Who  is  a  master  or  servant? — It  is  not  nec- 
essary that  there  be  a  definite  term  of  service,  nor  that 
any  wages  be  paid  or  due.  And  the  relation  may  exist 
even  where  the  services  were  volunteered,  if  they  were 
of  such  nature  that  a  contract  can  be  implied.  The  test 
in  all  cases  is  the  sort  of  control  that  is  exercised  over 
the  work.  The  relation  of  master  and  servant  exists 
when  one  has  the  right  to  control  and  direct  the  work 
of  another  who  is  employed  to  render  personal  service 
otherwise  than  in  pursuit  of  a  separate  calling.  The 
employer  may  contract  that  the  employe  shall  undertake 
to  bring  about  a  certain  result  and  shall  assume  all  re- 
sponsibility for  the  means  and  method  of  the  work.     In 


336  KLSMENTARY    LAW  [§  536 

such  case  the  employe  is  not  a  servant,  but  an  inde- 
pendent contractor. 

§  536.  Independent  contractor. — A  person  is  not  a 
servant,  but  an  independent  contractor,  who  is  employed, 
but  is  not  subject  to  the  order  or  control  of  the  employer 
as  to  the  method  or  means  to  be  taken  in  doing  the  work. 
The  general  rule  is  that  an  employer  is  not  responsible 
for  the  acts  of  an  independent  contractor.  If,  however, 
the  employer  dictates  the  method,  or  retains  any  direction 
or  control  over  the  contractor,  he  will  to  that  extent  be 
answerable  for  any  injuries  traceable  to  him.  And  if 
the  work  is  unlawful  in  itself,  or  must  necessarily  cause 
the  damage,  the  employer  may  be  held  liable  jointly  with 
the  contractor.  An  independent  contractor's  liability  to 
the  employer  for  wrongs  is  no  different  from  that  of  any 
stranger,  except  that  he  is  bound  to  perform  his  contract. 

§  537.     The  contract  between  master  and  servant. — 

A  general  hiring  without  limitation  is  at  common  law  a 
hiring  by  the  year.  From  custom,  or  from  the  times  of 
payment,  the  period  may  be  held  to  be  monthly,  weekly 
or  daily.  If  the  time  is  expressly  fixed,  it  controls,  and 
both  master  and  servant  are  bound  to  the  performance  of 
the  contract.  If  the  contract  is  for  doing  what  is  illegal 
it  is  void ;  so,  also,  if  the  hiring  is  for  an  immoral  pur- 
pose; and  if  any  essential  part  of  the  consideration  is 
illegal  the  whole  contract  is  void.  Contracts  for  personal 
services  can  not  be  specifically  enforced,  nor  can  they  be 
assigned  or  transferred  without  consent  of  both  parties. 
Such  contracts  are  always  subject  to  the  implied  condi- 
tion that  the  person  shall  be  able  to  perform  the  service, 
and  if  he  is  disabled  without  his  fault  he  is  excused  from 
further  performance.     In  the   absence  of  stipulation  or 


§  540]  MASTER  AND   SERVANT  337 

Statute  to  the  contrary,  wages  are  payable  at  the  end  of 
each  term  of  service. 

§  538.  Termination  of  the  relation. — In  addition  to 
the  termination  by  expiration  of  the  time  of  service,  or 
the  death  or  disablement  of  either  party,  the  contract  of 
service  may  be  put  to  an  end,  (1)  by  the  master's  dis- 
charging the  servant,  or  (2)  by  the  servant's  abandoning 
the  service. 

§  539.  Discharge  by  the  master. — The  master  may 
discharge  the  servant  for  sufficient  cause.  Just  what  is 
sufficient  cause  must  depend  upon  the  facts  in  each  case. 
Generally,  however,  it  is  sufficient  cause  for  discharge 
that  the  servant  is  guilty  of  disobedience,  immoral  con- 
duct, incompetency,  habitual  negligence,  drunkenness, 
fraudulent  conduct  and  the  like.  In  case  of  discharge 
for  cause  the  general  rule  is  that  the  servant  is  entitled 
to  payment  for  what  he  has  done  up  to  the  time  of  dis- 
charge, but  is  not  entitled  to  any  damages  for  the  un- 
expired term. 

If  the  discharge  be  without  good  cause,  the  servant 
is  entitled  not  only  to  payment  for  the  work  actually 
done,  but  to  damages  for  the  loss  of  his  wages  during 
the  unexpired  term.  He  is  bound,  however,  to  seek  other 
employment.  The  measure  of  damages  therefore  is  the 
unpaid  balance  of  wages  for  the  entire  period,  less  what 
he  might  have  earned  elsewhere. 

* 

§  540.  Abandonment  by  the  servant. — The  servant 
is  justified  in  abandoning  the  service,  if  he  suffers  ill 
usage  at  the  hands  of  the  master,  or  if  the  master  refuses 
to  allow  him  to  work.  These  faults  of  the  master  are 
equivalent  to  a  discharge,   and  the   liability   is  measured 

accordingly. 

22 — Elem.  Law. 


338  ELEMENTARY    LAW  [§  541 

Sickness  or  inevitable  accident  disabling  the  servant 
will  justify  an  abandonment  by  the  servant,  but  will 
entitle  him  to  payment  only  for  what  he  has  actually 
done. 

For  an  unjustifiable  abandonment  of  service  by  the 
servant  during  a  term  of  service,  it  was  formerly  the 
rule  that  as  the  price  was  entire  and  to  be  paid  for  the 
whole  service,  there  could  be  no  recovery  for  a  part.  The 
rule  now  in  many  states  is  that  the  servant  may  recover 
a  proportionate  part  of  the  wages,  less  whatever  dam- 
ages the  abandonment  caused  to  the  master. 

§  541.  Wrongs  independent  of  contract. — We  pass 
now  to  the  consideration  of  the  tortious  wrongs  that 
involve  the  relation  of  master  and  servant.  Such  wrongs 
may  create  liability  in  the  following  ways,  which  will  be 
considered  in  order :  ( 1 )  Liability  of  third  persons  to 
the  master.  (2)  Liability  of  third  persons  to  the  servant. 
(3)  Master's  liability  for  injury  to  others.  (4)  Servant's 
liability  for  injury  to  others.  (5)  Master's  liability  to 
servant  for  injuries  (a)  by  master,  (b)  by  persons  for 
whom  the  master  is  answerable.  (6)  Servant's  liability 
to  master  for  injuries    (a)    to  master,    (b)   to  others. 

§  542.  Liability  of  third  persons  to  the  master. — A 
master  has  an  action  against  one  who  wrongfully  entices 
away  his  servant  or  prevents  the  performance  of  the 
servant's  duty  to  the  master;  and  this  even  though  the 
relation  of  master  and  servant  be  determinable  at  will. 
One  who  harbors  another's  servant,  intending  thereby  to 
wrongfully  deprive  the  master  of  the  service  of  the  ser- 
vant, may  be  liable.  Where  the  wrong  is  one  causing 
direct  loss  to  the  servant  and  consequential  loss  to  the 
master,  as  in  the  case  of  personal  injury  to  the  servant, 
each  may  recover  for  his  own  damages. 


§  545]  MASTER   AND    SERVANT  339 

§  543.     Liability  of  third  persons  to  the  servant. — 

A  servant  being  the  inferior  has  no  such  interest  in  the 
master  as  will  sustain  an  action  by  the  servant  for  con- 
sequential damages  from  an  injury  to  the  master.  The 
servant  has  a  right  of  action  against  any  one  who  by 
wrongful  acts  procures  his  discharge,  provided  he  can 
show  damages. 

§  544.     Master's  liability  for  injury  to  others. — The 

question  here  is,  for  what  acts  and  omissions  of  the 
servant  is  the  master  liable  to  other  persons?  That  the 
master  is  liable  at  all  is  upon  the  maxim,  "He  who  acts 
through  another  acts  himself."  The  wrongs  done  may 
have  been  either  intended  or  unintended  by  master  or 
servant,  and  the  servant  may  have  acted  in  violation  of 
or  obedience  to  the  master's  orders.  The  persons  in- 
jured may  be  strangers,  to  whom  no  special  duty  was 
owing,  or  persons  to  whom  the  master  was  under  special 
obligation,  such  as  passengers  or  guests  at  inns.  Upon 
the  nature  of  the  wrong  and  the  kind  of  duty  owing 
depends  the  liability  of  the  master. 

§  545.  Intentional  and  unintentional  injuries. — The 
general  rule  is  that  where  the  servant's  acts  are  within 
the  real  or  apparent  scope  of  his  employment,  the  master 
is  responsible;  otherwise  not.  Hence  for  wilful  and 
malicious  acts  of  the  servant  the  master  is  not  generally 
liable,  for  such  acts  can  not  be  supposed  to  be  authorized. 
The  rule  for  liability  becomes  more  stringent,  however, 
if  the  master  is  under  some  special  duty  to  the  injured 
person,  as  in  case  of  a  passenger,  and  has  delegated  the 
performance  of  that  duty  to  the  ser\^ant.  In  such  case 
the  master  is  responsible  for  all  injuries  done  by  the  ser- 
vant,  during  the   time  of  the  service;   hence  the  master 


340  ELEMENTARY    LAW  [§  546 

may   be   liable    even    for   malicious    acts    done    in    express 
violation  of  orders. 


§  546.     Servant's   liability   for   injuries   to   others. — 

For  any  negligence  or  unlawful  act  of  a  servant  he  is 
liable  to  the  person  injured  whether  the  master  is  liable 
or  not,  and  no  matter  what  is  the  relation  of  the  injured 
person  to  the  master.  There  are  cases  in  which  the  ser- 
vant and  master  are  both  held  liable,  but  in  which,  as 
between  themselves,  the  master  is  liable  over  to  the  ser- 
vant for  any  loss  suffered  by  the  servant.  In  such  cases 
the  servant  must  have  acted  in  good  faith  and  in  obedi- 
ence to  the  master's  orders. 

§  547.  Master's  liability  to  the  servant. — First,  as 
to  injuries  by  the  master  himself.  While  it  is  a  privilege 
of  the  master  to  give  a  "character"  for  the  servant,  the 
servant  suffers  no  legal  damage  if  the  certificate  is  re- 
fused, even  though  the  refusal  be  arbitrary  and  unjust. 
For  any  injury  resulting  to  a  servant  from  the  direct 
personal  act  of  the  master,  the  master  is  liable  to  the  ser- 
vant the  same  as  though  no  such  relation  existed.  For 
any  failure  of  the  master  to  perform  the  duty  he  owes 
to  his  servant,  he  is  liable  to  the  servant  if  injury  results 
therefrom. 

§  548.  Duties  o£  master  to  servant, — The  master 
owes  the  dutv  to  his  servant  to  exercise  ordinarv  care 
in  the  following  respects :  In  providing  and  maintaining 
a  safe  place  to  work  and  safe  appliances  to  work  with, 
in  taking  due  precautions  to  prevent  accidents,  in  guard- 
ing the  servant  against  dangers  unknown  to  him,  in  re- 
fraining from  exposing  the  servant  to  unnecessary  or 
unknown  dangers,  in  employing  as  his  fellow  servants 
only  competent  persons,   and   in  employing  these  in  suf- 


§  551]  MASTER   AND    SERVANT  341 

ficient  number.  These  are  the  principal  duties,  though 
others  might  be  named.  If  the  master  exercise  ordinary 
care  in  discharging  his  duties,  he  is  not  hable,  though  the 
servant  be  injured. 

§  549.  Risks  assumed  by  servant. — The  servant  as- 
sumes all  risks  that  he  ought  to  know  are  incident  to 
the  discharge  of  his  duties,  all  risks  from  negligence  and 
wrongs  of  his  fellow  servants,  and  he  is  bound  to  use 
care  himself.  To  some  extent  the  servant  will  be  excused 
for  incurring  a  danger  under  order  of  the  master,  but  not 
if  the  danger  be  glaring,  nor  if  it  is  fully  known  to  the 
servant  and  voluntarily  assumed.  As  a  general  rule, 
where  the  opportunities  of  the  servant  for  discovering 
danger  are  equal  to  the  master's,  the  master  is  not  liable. 

§  550.  Fellow  servants. — If  the  master  has  exer- 
cised due  care  in  selecting  and  retaining  servants,  he  has 
done  his  duty.  If,  nevertheless,  injury  results  to  one  ser- 
vant by  the  wrongful  act  or  omission  of  another  servant, 
the  master  is  not  liable.  It  is  essential,  however,  that 
the  servants  shall  have  been  within  the  same  general  em- 
ployment, for  if  two  servants  are  engaged  in  occupations 
wholly  independent  of  each  other,  they  are  not  fellow 
servants.  And  it  is  to  be  further  noted  that  the  fellow- 
servant  rule  applies  only  to  the  servants  personally,  so 
that  if  the  wife  or  child  of  a  servant  be  injured  by 
another  servant,  the  master  is  held  liable  for  both  the 
direct  and  consequential  injury. 

§  551.  Vice  principal. — If,  however,  the  person 
causing  injury  to  the  servant  be  discharging  a  duty  which 
was  owing  from  the  master  himself  to  the  servant,  he  is 
regarded  to  that  extent  as  the  master.  The  name  usually 
given    is    vice   principal.      For   any    failure   to   discharge 


342  EIvEme;ntary  law  [§  552 

the  duties  he  owes  to  his  servant  the  master  is  liable, 
whether  the  act  or  omission  which  causes  the  injury  be 
his  own  or  his  vice  principal's.  A  person  may  at  the 
same  time  be  a  vice  principal  and  fellow  servant;  the 
character  of  the  act  done  determines  in  what  capacity  he 
acts. 

§  552.  Servant's  liability  to  master. — For  any 
wrongful  act,  neglect  or  incompetency  of  a  servant,  which 
causes  injury  to  the  master's  person  or  property,  the 
servant  is  liable  to  the  master,  provided  the  master  is  not 
also  in  fault.  If  a  servant  exceeds  the  authority  con- 
ferred upon  him  by  the  master,  and  so  involves  the  mas- 
ter in  loss,  the  servant  is  liable.  And  a  servant  is  liable 
to  the  master  for  any  damages  which  the  master  has 
been  compelled  to  pay  to  a  third  person  on  account  of 
the  wrongful  act  or  default  of  the  servant,  provided  the 
master  is  himself  free  from  fault. 


PART  VIII 


THE  LAW  OF  PERSONS  AND   DOMESTIC 

RELATIONS 

CHAPTER  XLII 

HUSBAND   AND   WIFE 

Sec.  Sec. 

553.  The    law   of   persons    and       560.     Duties  and  rights  of  hus- 

domestic  relations.  band  and  wife. 

554.  Right  to  marry.  561.     Divorce. 

555.  Fraud  between  parties  en-       562.     Injuries  between  husband 

gaged  to  be  married.  and  wife. 

556.  Marriage.  563.     Fraud     between     husband 

557.  Illegal  marriage.  and  wife. 

558.  Marriage  ceremony.  564.     Injuries  by  third  person. 

559.  Foreign  marriages. 

§  553.     The  law  of  persons  and  domestic  relations. 

— The  law  of  domestic  relations  deals  with  the  relation- 
ships of  husband  and  wife,  parent  and  child,  and  guardian 
and  ward,  and  the  various  duties  and  rights  flowing 
therefrom.  The  family  is  said  to  be  the  unit  of  society 
upon  which  all  else  depends.  It  becomes  necessary  there- 
fore for  such  relationships  and  their  consequent  rights 
and  duties  to  be  carefully  and  definitely  regulated  by 
the  state  in  the  common  interests  of  society,  and  such 
is  the  function  of  this  division  of  the  law. 

The  law  of  persons  has  to  do  with  the  alteration  of 
certain  general  rules  of  law  when  applied  to  certain 
classes  of  persons,  as  infants,  married  women,  etc.  For 
obvious  reasons  these  questions  can  be  conveniently  dealt 

343 


344  ELEMENTARY    LAW  [§  554 

with  in  connection  with  domestic  relations  which  give 
rise  to  most  of  the  classes  of  persons  affected  by  this 
branch  of  the  law.  So  much  of  this  branch  of  the  law 
as  is  concerned  with  the  capacity  of  the  infant  to  make 
contracts  has  been  dealt  with  under  the  law  of  that  sub- 
ject. 

§  554.  Right  to  marry. — A  refusal  to  perform  a 
promise  of  marriage  is  only  a  breach  of  contract,  the 
remedy  for  which  is  in  general  the  same  as  for  breach 
of  any  other  contract.  It  sometimes  happens  that  a  fraud 
becomes  mingled  in  the  making  or  breaking  of  the 
promise,  and  in  such  case  the  whole  becomes  a  tort  For 
example,  if  a  man  of  negro  blood,  pretending  to  be  white, 
should  induce  a  white  woman  to  enter  into  an  engage- 
ment for  marriage  with  him,  such  marriage  being  illegal, 
there  would  be  a  wrong  whether  the  marriage  ceremony 
were  performed  or  not. 

If  third  persons  wrongfully  interfere  with  mutual 
promises  of  marriage  and  break  the  engagement  an 
action  lies  in  favor  of  the  one  injured.  But,  generally, 
such  a  wrong  will  be  one  that  is  actionable  upon  some 
other  ground. 

§  555.  Fraud  between  parties  engaged  to  be  mar- 
ried.— This  relation  establishes  a  confidence  which, 
though  not  of  so  high  a  degree  as  marriage,  may  be  the 
basis  for  accomplishing  a  wrong.  The  confidence  is  such 
as  will  quiet  any  apprehension  of  fraudulent  practices. 
If  a  man  who  is  incapacitated  to  marry,  as  by  already 
having  a  wife,  should  engage  himself  to  marry  a  woman, 
and  should  induce  her  to  consummate  a  supposed  mar- 
riage, he  would  be  liable  in  damages  to  her.  It  would 
not  be  necessary  to  show  any  active  misstatement  or 
deception.     The  relation  of  confidence  precludes  the  neces- 


§  557]  HUSBAND  AND   WIFE  345 

sity  of  any  inquiry  by  the  woman.  And  if,  under  a 
promise  of  marriage  which  he  does  not  intend  to  fulfill, 
a  man  accomplishes  the  seduction  of  a  woman,  damages 
are  given  on  account  of  the  breach  of  trust. 

Where  there  is  an  engagement  to  marry,  the  parties 
are  each  entitled  to  take  into  consideration  the  pecuniary 
circumstances  of  the  other.  If  one  thereupon  should 
make  a  secret  conveyance  of  property,  so  that  the  mar- 
riage is  of  less  pecuniary  benefit  to  the  other,  there  is  a 
right  of  action  for  such  fraudulent  practice. 

And  if,  while  under  engagement  to  marry,  one  should 
use  the  relation  of  confidence  for  the  purpose  of  obtain- 
ing the  other's  property,  the  law  affords  redress  in  an 
action  for  damages  or  to  recover  the  property. 

§  556.  Marriage. — Under  this  head  there  are  to  be 
considered,  first,  the  formation  of  the  relation;  second, 
the  rights,  duties  and  liabilities  that  arise  out  of  mar- 
riage, and  third,  its  dissolution. 

Marriage  is  defined  to  be  the  lawful  union  of  one  man 
with  one  woman,  to  the  exclusion  of  all  others,  by  a 
bond  that  can  not  be  dissolved  by  the  act  of  either  or 
both,  and  can  only  be  dissolved  by  the  authority  of  the 
state.  If  the  union  be  made  as  a  temporary,  arrange- 
ment, to  be  ended  at  the  pleasure  of  either  party,  it  is 
not  a  marriage. 

§557.  Illegal  marriage.— In  order  to  be  a  valid 
marriage,  the  union  must  be  lawful.  Some  persons  are 
by  law  incompetent  to  marry  and  marriage  between  cer- 
tain classes  is  prohibited.  The  subject  is  controlled  by 
statute  of  the  various  states,  and  the  legislation  has  not 
been  harmonious.  Some  of  the  principal  grounds  upon 
which  marriages  are  prohibited  will  be  stated. 

The    marriage    of    near    relations    is    forbidden,    the 


346  ELEMENTARY    LAW  [§558 

degrees  varying  in  the  several  states.  Marriage  between 
a  black  and  a  white  person  is  in  many  states  void,  in 
some  others  is  punishable  criminally.  If  either  party  is 
physically  incapable  of  marriage,  it  is  null  and  void.  If 
either  party  have  a  wife  or  husband  living,  the  second 
marriage  is  void.  A  marriage  procured  by  force  or  cer- 
tain kinds  of  fraud  is  voidable  at  the  option  of  the  party 
wronged. 

§  558.  Marriage  ceremony. — ^The  law  contemplates 
that  the  marriage  ceremony  shall  be  attended  with  some 
degree  of  publicity.  Usually,  only  a  judicial  officer  or 
minister  of  the  gospel  is  by  law  allowed  to  solemnize 
marriage.  A  license  by  the  state  must  usually  be  obtained. 
Violation  of  such  provisions  does  not  generally  invalidate 
the  marriage.  Any  marriage  may  be  valid,  if  the  parties 
in  the  presence  of  witnesses  declare  that  they  then  and 
there  take  each  other  as  husband  and  wife. 

§  559.  Foreign  marriages. — It  is  a  well-settled  prin- 
ciple that  a  marriage  valid  where  it  is  celebrated!  will  be 
deemed  valid  everywhere,  and  one  invalid  where  cele- 
brated will  be  deemed  invalid  everywhere.  This,  however, 
is  subject  to  the  exception  that  if  the  marriage  be  deemed 
immoral  or  incestuous  in  the  domicile  of  the  parties,  and 
they  go  into  another  country  merely  to  evade  the  law  of 
their  own,   the  marriage  will  be  void. 

§  560.  Duties  and  rights  of  husband  and  wife. — 
The  duty  of  the  husband  is  to  love  and  protect  the  wife, 
and  to  provide  for  her  according  to  his  means  and  condi- 
tion. The  duty  of  the  wife  is  to  love,  •  honor  and  obey 
the  husband.  The  husband  has  the  right  to  select  the 
domicile,  and  it  is  the  wife's  duty  to  follow  him.  The 
husband  has  not  now  any  right  to  chastise  or  restrain  the 
wife,    whatever    may    be    her    fault,    and    neither    can    be 


§  561]  HUSBAND   AND    WIFE  347 

compelled  to  live  with  the  other.  It  is  the  duty  of  the 
husband  to  provide  for  the  offspring  of  the  marriage, 
according  to  his  station.  By  reason  of  the  fiction  of  legal 
unity  of  husband  and  wife,  and  also  upon  grounds  of 
public  policy,  husband  and  wife  can  not  be  compelled  to, 
and  will  not  be  permitted  to,  testify  as  to  communications 
made  between  them.  And  formerly  they  were  not  allowed 
to  be  witnesses  for  or  against  each  other. 

At  common  law  a  husband  was  liable  for  his  wife's 
antenuptial  debts,  and  the  wife  could  make  no  contract 
that  bound  her.  In  most  of  the  states  legislation  has 
greatly  enlarged  the  powers  and  liabilities  of  married 
women,  so  that  now  ability  seems  to  be  the  rule  and 
disability  the  exception.  A  wife  may  be  the  agent  of 
her  husband,  or  the  husband  may  be  agent  for  the  wife. 
A  wife  may  always  bind  her  husband  for  necessaries 
furnished  her,  and  what  these  are  depends  largely  upon 
the  condition  of  the  parties.  Formerly,  a  husband  was 
liable  for  all  wrongs  done  by  his  wife;  now,  however, 
keeping  pace  with  the  enlargement  of  her  rights  and 
powers,  a  married  woman  is  liable  for  her  own  wrongs, 
and  the  husband  is  not  liable  except  for  such  as  he  was 
party  to.  The  law  now  is  in  nearly  all  states  that  a  mar- 
ried woman  may  own  property  the  same  as  if  unmar- 
ried, and  but  few  limitations  are  placed  upon  her  power 
to  dispose  of  her  property. 

§  561.  Divorce. — Many  of  the  duties  owing  from 
a  husband  or  wife  to  the  other  are  of  imperfect  legal 
obhgation,  in  that  performance  of  them  can  not  be  en- 
forced, but  for  some  of  the  grosser  violations  of  the 
marriage  contract,  the  law  gives  a  remedy  by  divorcing 
the  parties.  What  shall  be  cause  for  divorce  is  the  sub- 
ject of  diverse  statutes  in  the  various  states.  Generally 
the  causes  are  adultery,  abandonment,   failure  to  provide, 


348  ELEMENTARY    LAW  [§  562 

or  cruelty.  The  suit  to  put  an  end  to  the  marriage  con- 
tract differs  from  the  ordinary  suit  upon  contract,  in  that 
the  plaintiff's  domicile,  and  not  the  defendant's,  fixes  the 
place  for  beginning  suit.  The  reason  for  this  is  that 
there  is  more  than  a  contract  involved,  namely,  the  legal 
status  of  the  party  complaining.  On  account  of  the 
interest  the  state  has  in  the  marriage,  the  parties  have  no 
legal  right  to  agree  upon  a  decree  of  divorce,  but  the 
court  may,  and  usually  does,  hear  some  evidence. 

If  cause  for  divorce  exists,  the  court  usually  allows 
alimony  to  the  wife,  if  she  is  the  innocent  one.  It  is 
usual  in  estimating  alimony  to  base  it  upon  the  value  of 
the  wife's  interest  in  her  husband's  property. 

§  562.     Injuries    between    husband    and    wife. — At 

common  law  the  legal  existence  of  the  wife  merged  in  her 
husband.  No  suit  in  her  name  could  be  maintained  un- 
less he  joined.  There  was  scant  redress  by  civil  suit  for 
any  injury  done  by  one  to  the  other,  and  but  few  injuries 
were  punished  criminally.  As  has  been  said,  the  tendency 
of  legislation  has  been  to  destroy  the  legal  fiction  that 
husband  and  wife  are  one  person,  and  to  treat  them  as 
separate  individuals,  especially  in  their  property  rights. 
In  some  states  statutes  have  placed  the  wife  on  such  a 
footing  that  she  can  sue  her  husband  for  any  civil  wrong, 
the  same  as  if  unmarried.  In  others  the  courts  have  been 
conservative,  and  have  restrained  what  was  apparently  the 
liberal  intention  of  the  legislature,  and  the  wife  is  not 
allowed  to  sue  her  husband  for  many  civil  wrongs. 

§  563.  Fraud  between  husband  and  wife. — To  this, 
the  most  confidential  to  all  relations,  the  law  gives  a 
jealous  protection.  Communications  between  husband 
and  wife  are  held  sacred,  and  no  matter  how  great  may 
be  the  interests  that  seem  to  demand  it,  the  law  will  not 


§  564]  HUSBAND   AND   WIFE  349 

compel  a  disclosure.  Nevertheless,  as  between  them- 
selves, no  legal  remedy  is  given  for  a  violation  of  such 
confidences,  for  it  is  deemed  better  policy  to  leave  the 
observance  of  confidences  between  husband  and  wife  to 
their  own  sense  of  what  is  proper.  Any  attempt  at  legal 
redress  would  probably  cause  greater  evils  than  it  would 
cure. 

So  far  as  concerns  dealings  between  husband  and 
wife  in  relation  to  their  property  interests,  it  is  evident 
that  they  must  always,  to  a  greater  or  less  degree,  be 
affected  by  the  influence  of  the  marriage  relation.  While 
the  law  recognizes  with  approval  a  reasonable  use  of  such 
influence,  no  unfair  use  of  it  will  be  permitted.  As  a 
rule,  the  man  being  the  stronger  and  more  experienced 
in  business  affairs,  there  is  less  reason  to  suspect  an 
undue  controlling  influence  on  the  part  of  the  wife.  On 
the  other  hand,  a  husband  is  presumed  to  have  a  great 
influence  and  control;  so  that,  in  any  transactions  as  to 
the  wife's  property,  the  law  will  examine  most  closely, 
and  if  there  be  found  any  evidence  whatever  of  unfair- 
ness or  bad  faith,  relief  will  be  granted. 

§  564.  Injuries  by  third  person. — The  right  to  re- 
cover for  injuries  done  by  a  third  person  to  husband  or 
wife  depended  originally  on  the  right  each  had  to  services 
of  the  other,  and  the  damage  consisted  in  the  loss  of 
such  services. 

From  the  fact  that  at  common  law  a  wife  was  the 
inferior  person,  it  followed  that  she  suffered  no  legal 
damage  by  the  loss  of  her  husband's  society  and  services, 
and  hence  she  was  not  permitted  to  recover  damages  for 
any  personal  injuries  to  him,  nor  for  his  being  enticed 
away  whereby  she  was  deprived  of  support. 

With  the  statutory  enlargements  of  the  wife's  rights 
the  courts  have  gradually  enlarged  her  rights  as  to  her 


350  ElvEMSNTARY    LAW  [§  564 

husband's  society,  until  now  it  is  generally  held  that  the 
right  to  society  and  not  the  right  to  services  is  the  true 
basis  of  recovery,  and  that  a  woman  as  well  as  a  man 
may  maintain  an  action  for  deprivation  of  the  right. 

At  common  law  a  husband  had  a  legal  right  in  the 
serv^ices  of  his  wife,  and  could  recover  damages  for  any 
injury  to  his  right.  The  basis  of  recovery  for  the  hus- 
band has  been  gradually  changed,  as  in  the  wife's  case, 
and  now  rests  principally  upon  the  right  to  the  wife's 
society.  So  that  now  a  husband  may  recover  against 
one  who,  by  artifice  and  fraud,  alienates  the  affections  of 
his  wife  even  though  she  continue  to  reside  with  him 
and  serve  him.  If  one  brings  about  the  alienation  of 
affection  of  another's  wife,  or  a  separation,  it  matters 
not  how  far  the  wife  was  blameworthy.  The  wrong  to 
the  husband  is  the  same  whether  the  wife  consented  or 
not.  Mere  giving  shelter  to  a  wife  who  has  left  her  hus- 
band will  not  raise  a  liability.  But  if  any  influence  is 
used  over  the  wife  to  continue  the  separation,  or  if 
access  is  denied  to  the  husband,  he  may  have  an  action. 
If,  however,  the  husband  has  given  cause  for  divorce,  he 
can  not  be  heard  to  complain.  And  if  the  husband  in 
any  manner  connived  at  the  seduction  of  his  wife  he  can 
not  recover  damages  therefor. 

Where  a  wife  receives  personal  injuries  which  incapac- 
itate her  for  her  duties,  there  are  two  kinds  of  damage,  (ly 
that  suffered  directly  by  the  wife,  (2)  that  conse- 
quentially suffered  by  the  husband.  At  common  law,  for 
the  former,  being  her  pain  and  suffering,  humiliation  and 
the  like,  the  suit  was  in  the  name  of  both;  and  for  the 
latter,  being  the  loss  of  society  and  services,  the  husband 
sued  alone.  In  either  case  the  amount  recovered  belonged 
to  the  husband.  Now,  however,  it  is  generally  the  law 
that  the  damages  in  the  former  case  inure  to  the  wife, 
and  only  in  the  latter  case  to  the  husband. 


CHAPTER  XLIII 


PARENT  AND  CHILD 


Sec. 

565.  Legitimacy. 

566.  Rights     and     duties    of 

parent  and  child. 

567.  Wrongs   as   between   par- 

ent and  child. 
568-     Fraud  between  parent  and 

child. 
569.     Wrongs  by  third  persons. 


Sec. 

570.  Child's  ir.rerest  in  the  par- 
ent. 

57L  Parent's  interest  in  the 
child. 

572.  Physical    injuries    to    the 

child. 

573.  Enticing  away  the  child. 
^74.     Seduction. 


§  565.  Legitimacy. — Children  may  be  either  legiti- 
mate or  illegitimate,  according  as  their  parents  are  or  are 
not  lawful  husband  and  wife ;  or  they  may  be  adopted. 
Every  child  born  to  a  wife  during  the  continuance  of  the 
marriage  relation  is  presumed  to  be  the  child  of  her  hus- 
band. The  presumption  is  not  conclusive,  however,  and 
illegitimacy  of  the  child  may  be  established  by  proof,  but 
only  by  clear  and  convincing  proof.  Illegitimate  children 
born  before  marriage  become  legitimate  upon  marriage 
of  their  parents,  but  in  England  and  a  few  states  this 
is  not  the  law.  At  common  law,  the  children  born  of  a 
void  marriage  were  illegitimate,  but  it  is  generally  pro- 
vided by  statute  that  if  the  marriage  was  entered  into  in 
good  faith,  the  children  shall  be  deemed  legitimate.  The 
common  law  did  not  recognize  the  adoption  of  children. 
Statutes  in  many  states  now  make  provision  therefor  and 
these  must  be  scrupulously  observed.  Generally  upon 
the  adoption  of  a  child,  the  adopting  parent  and  the  child 
have  all  the  rights,  duties  and  liabilities  that  exist  between 
ttalural  parent  and  child. 

351 


352  ELEMENTARY    LAW  [§  566 

§  566.     Rights  and  duties  of  parent  and  child. — The 

mother  of  a  bastard  has  the  right  to  custody  and  control, 
and  she  is  under  obligation  to  support  it;  its  supposed 
father  is  not  liable  for  its  support,  except  under  special 
proceedings  provided  by  statute.  At  common  law  a 
bastard  could  not  inherit  either  from  his  father  or 
mother,  but  by  statute  the  bastard  now  in  most  states 
inherits  from  the  mother,  and  in  some  inherits  from  the 
father  in  the  absence  of  other  heirs. 

As  to  legitimate  children,  the  duty  of  the  parent,  first 
the  father,  or  if  he  be  dead  the  mother,  is  to  protect, 
educate  and  maintain  the  child  during  minority.  Just 
the  exact  status  of  this  duty  is  uncertain,  but  most  states 
hold  the  parent  responsible  for  necessaries  furnished  to 
the  child,  where  the  parent  has  not  been  illegally  deprived 
of  the  custody  of  the  child.  Direct  suits  by  the  child 
against  the  parent  for  support  have  never  been  allowed. 
In  some  states  the  duty  is  made  clear  by  statute.  No 
action  is  permitted  by  a  child  against  a  parent  for  any 
failure  in  these  duties,  even  though  the  failure  may  be 
criminally  punishable.  By  way  of  compensation  for,  and 
in  aid  of  the  parent's  duties,  the  law  gives  to  the  parent 
the  custody,  control  and  services  of  his  minor  children. 
He  may  moderately  and  reasonably  correct  or  restrain 
the  child.  So  long  as  he  is  a  fit  person,  he  is  entitled 
to  the  custody  of  the  child.  All  rights  and  duties  as 
between  parent  and  child  end  with  the  majority  of  the 
child  or  emancipation,  that  is,  the  agreement,  express  or 
implied,  of  the  parent  and  child  that  the  child  may  be 
treated  as  an  adult. 

A  parent  is  not  liable  for  wrongs  done  by  the  child 
to  other  persons,  unless  done  by  the  parent's  directior., 
or  in  his  service.  Of  course,  a  child  can  not  be  held 
liable   for  wrongs  done  by  its  parent. 


§  569J  PARENT    AND    CHILD  353 

§  567.  Wrongs  as  between  parent  and  child. — 
Whether  a  parent  will  be  civilly  liable  for  personal 
wrongs  done  to  a  child  is  not  wholly  settled.  By  the 
weight  of  authority  and  the  better  opinion  there  is  no 
civil  liability,  so  far  as  assault  and  battery  or  imprison- 
ment is  concerned,  it  being  deemed  safer  to  rely  upon 
the  natural  affection  of  a  parent. 

For  any  wrongs  done  by  a  parent  to  the  property  of 
his  child,  he  is  answerable  the  same  as  he  would  be  to 
any  other  person. 

For  any  injury  done  by  a  child  to  its  parent  the 
better  view  is  that  the  child  will  not  be  civilly  responsible. 
These  rules  are  based  upon  the  public  policy  that  it  is 
better  for  family  discipline  and  peace  that  such  con- 
troversies  should   not  be   brought   into   the   court. 

§  568.  Fraud  between  parent  and  child. — Inasmuch 
as  an  infant's  dealings  with  his  property  are  voidable,  a 
parent  can  not  acquire  any  advantage  through  his  influ- 
ence over  the  infant.  The  transaction  would  be  invalid, 
simply  from  want  of  power  in  the  infant.  But  after 
maturity  of  the  child,  there  may  still  be  an  influence  by 
the  parent,  and  if  such  influence  and  relation  of  confidence 
be  used  to  obtain  an  undue  advantage  in  any  transaction 
between  the  parent  and  child,  the  child  may  have  redress 
by  appeal  to  the  courts.  Such  relation  of  confidence  may 
also  exist  in  favor  of  the  parent  in  old  age,  and  he  will 
be  protected  in  a  similar  way  against  the  machinations 
of  his  mature  offspring. 

§  569.  Wrongs  by  third  persons. — Whenever  a 
third  person  does  an  injury  to  a  parent  or  a  child,  there 
is  a  double  loss,  direct  to  the  one  and  consequential  to 
the  other,   and  the  question  is  how  are  such  wrongs 

23 — Elem.  Law. 


354  ELEMENTARY    I.AW  [§  570 

done,  and  for  what  loss  is  the  wrongdoer  held  responsible. 
These  will  be  considered  separately. 

§  570.  Child's  interest  in  the  parent. — In  the  rela- 
tion of  parent  and  child,  the  general  rule  applies  that  the 
inferior  has  no  rights  in  the  superior,  hence  a  child  has 
no  such  interest  in  the  parent  as  will  support  a  suit  by 
the  child  to  recover  for  injuries  to  the  parent.  The  only 
exception  is  in  cases  of  injuries  causing  death,  when  the 
statute  gives  a  right  of  recovery  to  the  personal  repre- 
sentative for  the  benefit  of  wife  or  child.  This  has  been 
considered  elsewhere. 

§  571.  Parent's  interest  in  the  child. — The  parent 
is  entitled  to  the  services  of  his  child,  and  all  the  profits 
to  be  derived  therefrom  until  majority.  Whoever  in- 
capacitates the  child  from  rendering  the  service,  causes 
legal  damage  to  the  parent,  and  is  subject  to  an  action. 
The  right  to  recover  is  based  on  the  right  to  services  and 
the  duty  to  protect.  At  common  law  the  parent  recovered 
only  to  the  same  extent  that  a  master  would  recover  for 
loss'  of  services  of  his  servant. 

Damage  to  the  parent  may  arise  by  injuries  that 
diminish  the  child's  ability  to  serve,  or  by  wholly  depriv- 
ing the  parent  of  its  services;  and  the  latter  may  occur 
by  enticing  the  child  away  or  by  causing  its  death.  The 
last-named  wrong  has  been  treated  in  a   former  section. 

§  572.  Physical  injuries  to  the  child. — Any  one  who 
by  a  wrongful  act  injures  the  child  so  as  to  deprive  the 
parent  of  its  services,  or  to  cause  loss  through  care  and 
attendance  upon  it,  is  liable  to  the  parent  therefor.  If 
tjhe  injury  is  of  a  continuing  nature,  the  parent  recovers 
iiot  only  the  value  of  the  services  actually  lost,  but  for 
the  deprivation  or  impairment  of  services  up  to  the  age 


§  574]  PARENT    AND    CHILD  355 

of  twenty-one.  In  estimating  the  value  of  services  the 
expense  of  supporting  the  child  must  be  considered.  It 
's  only  for  loss  of  services  that  the  parent  recovers;  for 
mere  loss  of  happiness,  comfort  and  society  of  the  child, 
except  so  far  as  they  can  be  viewed  as  services,  there 
can  be  no  recovery.  The  parent's  anxiety,  grief  and 
sympathy  for  the  child's  injury  are  not  elements  of  dam- 
age in  a  legal  sense.  For  the  child's  suffering,  mental 
anxiety  and  permanent  injury  or  disfigurement,  the 
parent  has  no  right  of  action  for  his  own  benefit,  the 
action  for  all  such  damage  being  in  the  name  of  the 
child  itself  and  the  recovery  being  for  its  own  benefit. 

§  573.  Enticing  away  the  child. — The  parent  is  en- 
titled to  the  custody  as  well  as  the  services  of  the  child; 
and  if  a  wrongdoer  get  possession  of  it,  the  parent  may 
by  legal  proceedings  have  it  restored  to  him. 

Whoever  by  force  or  artifice  takes  a  child  away  from 
its  parent  is  liable  to  the  parent  for  the  loss  of  its  ser- 
vices. The  recovery  in  such  case  is  based  upon  the  rela- 
tion of  master  and  servant,  rather  than  upon  the  parental 
relation.  For  if  the  parent  has  emancipated  the  child, 
that  is,  given  to  it  the  right  to  enjoy  all  the  profits  of 
its  services,  so  that  there  is  no  longer  the  relation  of 
master  and  servant,  there  is  no  right  of  recovery  in  favor 
of  the  parent. 

§  574.  Seduction. — The  wrong  by  seduction  of  a 
female  child  has  some  elements  that  distinguish  it  from 
other  wrongs.  The  law  has  labored  under  some  difficulties 
from  which  it  has  emerged  but  slowly.  Under  the  com- 
mon law  the  right  of  action  was  based  purely  upon  the 
parent's  right  as  a  master  to  the  services  of  his  daughter 
as  a  servant.  It  followed  from  this,  that  while  he  could 
recover    against    a    seducer,    if    his    daughter    resided    at 


356  ELEMENTARY    LAW  [§  574 

home,  or  was  not  actually  in  the  service  of  some  one  else, 
lie  could  not  recover  if  another  person  were  lawfully  en- 
titled to  her  services  by  contract.  The  law  permitted  the 
father  to  recover  for  the  shame  and  humiliation  conse- 
quent upon  the  seduction,  but  only  in  cases  where  he  was 
entitled  to  recover  on  account  of  loss  of  services.  Conse- 
quently, when  she  was  in  the  service  of  another,  the 
only  damages  recoverable  were  the  loss  of  her  time  and 
the  expenses,  and  these  were  recoverable  by  the  person 
who  was  entitled  to  the  service  or  who  paid  the  expenses. 
The  anomaly  was  that  the  action  was  made  to  depend 
upon  loss  of  services,  which  generally  were  merely 
nominal,  whereas  the  real  injury  for  which  the  substantial 
damages  were  given  was  the  shame  and  disgrace. 

To  remedy  this  inconsistency  statutes  have  been 
passed  in  most  of  the  states  giving  the  parent  a  right  of 
action  for  the  seduction  of  the  daughter,  whether  or  not 
the  daughter  be  living  with  the  parent,  or  the  parent  be 
entitled  to  her  services.  A  further  right  of  action  is 
given  to  the  woman,  seduced  to  sue  for  her  own  seduction. 


CHAPTER  XLIV 

GUARDIAN   AND   WARD 

Sec.  Sec. 

575.  Kinds  of  guardianship.  581.  Next  friend. 

576.  Natural  guardian.  582.  Rights    of    guardian    and 

577.  Testamentary    guardian.  ward  in  each  other. 

578.  Legal  guardian.  583.  Wrongs  between  guardian 

579.  Guardian's  deeds.  and  ward. 

580.  Guardian  ad  litem.  584.  Guardian  of  the  insane. 

§  575.  Kinds  of  guardianship. — A  guardian  is  one 
who  has  the  care  and  management  of  either  the  person 
or  property,  or  both,  of  a  child  during  minority.  At 
common  law  there  were  many  kinds  of  guardianship, 
which  have  become  obsolete.  In  the  United  States  at 
present  the  law  relating  to  guardianship  is  much  the  same 
for  all  the  states. 

The  following  are  to  be  considered:  (1)  Natural 
guardians.  (2)  Testamentary  guardians.  (3)  Legal 
guardians.  (4)  Guardians  ad  litem.  (5)  Prochein  ami 
or  next  friend. 

§  576.  Natural  guardian. — By  this  is  meant  the 
father,  or,  on  his  death,  the  mother.  None  other  can  be 
the  natural  guardian.  The  natural  guardian  has  control 
of  the  person  of  the  child,  but  not  of  its  property.  The 
title  is,  in  fact,  nothing  more  than  another  name  for  the 
natural  right  of  a  parent  to  the  custody  and  control  of 
the  child.  It  adds  nothing  to  the  legal  right.  There  is 
no  action  that  may  be  brought  for  an  infant  by  natural 
guardian,  and  whenever  a  parent  sues  as  such  on  account 
of  any  injury  to  the  child  the  recovery  is  for  the  benefit 

of  the  parent  only. 

•       357 


358  ELEMENTARY    LAW  [§  577 

§  577.  Testamentary  guardian. — By  this  is  meant 
tlie  person  named  in  a  parent's  will  to  be  the  guardian 
of  a  child.  Such  person  simply  has  a  preference  to  be 
appointed  the  legal  guardian,  if  all  other  things  are  equal. 
He  has  no  powers  unless  appointed  by  the  court,  and 
when  legally  appointed  his  status  is  that  of  an  ordinary 
legal  guardian. 

§  578.  Legal  guardian. — By  this  is  meant  the  per- 
son appointed  to  be  guardian  by  the  court  having  jurisdic- 
tion. Generally  the  father  has  the  preference,  then  the 
mother,  then  the  next  of  kin  in  order.  The  legal 
guardian  always  has  exclusive  control  of  the  ward's 
property  and  sometimes  of  the  ward's  person.  So  long 
as  the  parent  claims  the  custody  of  the  child's  person,  the 
legal  guardian  has  no  right  to  it.  But  if  the  parents  are 
dead,  or  unfit,  the  legal  guardian  is  entitled  to  custody. 

The  guardian's  duty  is  to  see  that  the  ward  is  cared 
for  and  properly  educated.  As  to  the  ward's  estate,  the 
guardian  is  bound  to  exercise  care  and  diligence  in  man- 
aging it;  must  account  from  time  to  time  to  the  court 
appointing  him,  and  upon  maturity  of  the  ward  must 
pay  over  and  deliver  to  the  ward  the  entire  estate.  The 
guardian  is  held  to  strict  accountability.  Unauthorized 
acts  of  the  guardian  may  be  adopted  if  beneficial,  or 
rejected  if  detrimental  to  the  estate;  and  a  guardian  is 
not  permitted  to  reap  any  personal  benefit  whatever  out 
of  the  management  of  the  estate,  except  what  is  allowed 
by  the  court  as  compensation  for  his  services. 

Among  the  guardian's  duties  are  the  collection  of 
debts  and  the  defense  of  all  suits  against  the  ward.  What 
suits  must  and  what  may  be  brought  in  the  name  of  the 
guardian  for  the  infant  is  regulated  by  statute  in  the 
several  states.  In  cases  where  the  law  does  not  permit 
the  guardian  to  litigate   for  the  infant  or  where  though 


§  581]  GUARDIAN    AND    WARD  359 

entitled  he  refuses  to  do  so,  it  is  generally  provided  that 
the  action  or  defense  may  be  made  for  the  infant  by 
guardian  ad  litem  or  next  friend. 

§  579.  Guardian's  deeds. — A  guardian  can  only  con- 
vey his  infant's  land  when  authorized  to  do  so  by  a 
court  having  jurisdiction.  The  deed  of  an  infant  is  void- 
able, and  may  be  ratified  or  disaffirmed  by  the  infant,  on 
arriving  at  full  age  or  before.  Lands  of  idiots  and  luna- 
tics can  only  be  conveyed  by  guardians,  under  authority 
of  the  court. 

§  580.  Guardian  ad  litem. — After  a  suit  is  begun 
against  an  infant,  and  the  infancy  is  disclosed  to  the 
court,  the  court  will  see  to  it  that  he  is  represented  by 
a  guardian.  Whenever  the  legal  guardian  appears  for  the 
infant  a  guardian  ad  litem  is  usually  not  necessary.  But 
in  absence  of  the  legal  guardian  the  court  appoints  a 
guardian  for  the  purposes  of  that  suit  only — a  guardian 
ad  litem.  He  is  an  officer  of  the  court,  may  be  removed 
at  pleasure,  has  no  power  over  the  infant's  person  or 
property,  has  no  power  to  admit  or  waive  anything;  his 
functions  being  only  to  see  that  the  infant's  case  is  fully  pre- 
sented to  the  court  for  decision.  The  guardian  ad  litem 
is  always   for  the  defense. 

§  581.  Next  friend. — An  infant  is  not  permitted  to 
maintain  an  action  in  his  own  name  solely,  if  his  disability 
is  brought  to  the  attention  of  the  court.  Wherever  the 
legal  guardian  can  not  or  will  not  bring  suit  for  the 
infant,  the  infant  must  be  represented  by  his  next  friend. 
The  infant  may  select,  if  he  washes,  or,  if  suit  is  brought 
before  the  infant  has  selected,  the  court  may  appoint  the 
next  friend.  Any  one  may  act  as  next  friend;  it  is  not 
confined  to  kin.     The  next  friend  is  subject  to  control  of 


360  ELEMENTARY    LAW  [§  582 

the  court,  and  may  at  any  time  be  removed  by  the  court 
and  another  appointed.  One  purpose  in  requiring  a  next 
friend  for  an  infant  is  thai:  there  may  be  some  one  re- 
sponsible for  the  costs  of  the  suit.  The  next  friend  is 
hable  for  costs  while  the  infant  is  not.  It  is  usually  pro- 
vided that  there  need  be  no  next  friend,  where  an  infant 
is  a  joint  plaintiff  with  adults. 

§  582.     Rights  of  guardian  and  ward  in  each  other. 

— A  guardian  has  no  right  to  the  services  of  a  ward, 
and  unless  the  relation  of  master  and  servant  exists,  can 
not  recover  for  his  own  benefit  any  damages  on  account 
of  injuries  to  the  ward. 

A  ward  has  no  interest  in  the  guardian's  services  that 
will  sustain  an  action  by  the  ward  against  one  who  in- 
jures the  guardian. 

§  583.  Wrongs  between  guardian  and  ward. — As 
between  each  other,  guardian  and  ward  are  answerable 
for  injuries  done,  to  the  same  extent  as  if  the  relation 
did  not  exist.  Except,  however,  that  where  the  guardian 
has  custody  of  the  ward's  person,  he  stands  in  loco 
parentis  and  has  a  larger  right  to  restrain  and  correct 
the  ward.  And  also,  where  the  influence  of  the  guardian 
is  misused,  the  relation  enters  as  a  factor  into  the  duty 
owing  and  the  wrong  done.  This  is  shown  in  the  chap- 
ter on  frauds. 

§  584.  Guardian  of  the  insane. — Analogous  to  the 
guardianship  of  infants  is  the  guardianship  of  the  insane. 
It  is  generally  provided  by  statute  that  upon  a  judicial 
determination  of  the  insanity  of  a  person,  the  court  may 
appoint  a  guardian  to  take  charge  of  the  person  and 
property  of  the  insane.  The  duties  of  such  guardians 
are  the  same  in  general  as  those  of  guardians  of  infants. 


§  584]  GUARDIAN    AND    WARD  361 

and  they  are  held  to  like  accountability.  It  is  their  duty 
to  appear  for  and  defend  suits  against  their  insane  wards. 
The  guardianship  may  be  terminated  upon  the  restora- 
tion to  sanity  of  the  ward,  which  fact  must  be  judicially 
determined  in  the  same  way  that  insanity  was  determined. 


PART   IX 


Sec. 

Sec. 

585. 

Public  law  in  general. 

588. 

586. 

Constitutional  law  in  gen- 
eral. 

587. 

The  American  doctrine  of 
constitutional  law. 

589. 
590. 

PUBLIC  LAW 

CHAPTER  XLV 
CONSTITUTIONAL   LAW   IN   GENERAL 

Legal  importance  of  the 
American  doctrine  of 
constitutional  law. 

Arrangement  of  the  sub- 
ject. 

The  separation  of  powers. 

§  585.  Public  law  in  general. — In  a  previous  chap- 
ter public  law  was  said  to  be  composed  of  those 
rules  dealing  with  the  "structure,  powers,  rights  and 
activities  of  the  state"  while  private  law  includes  "all  the 
residue  of  legal  principles."  Holland  makes  the  distinc- 
tion rest  upon  the  question  of  whether  the  law  regulates 
rights  between  subject  and  subject  or  between  state  and 
subject,  it  being  private  law  in  the  first  case  and  public 
law  in  the  second.  He  then  divides  public  law  into  con- 
stitutional law,  administrative  law  and  criminal  law.  To 
these  three  divisions  may  be  added  international  law, 
which  is  that  body  of  rules  in  accordance  with  which  the 
rights  between  state  and  state  are  regulated.  For  peda- 
gogical reasons  criminal  law  was  treated  in  an  earlier 
part  of  the  volume,  and  the  remaining  divisions  will  be 
treated  in  the  order  named. 

§  586.     Constitutional   law   in   general. — A   constitu- 

362 


8  586]  CONSTITUTIONAI,  LAW  IN  GENERAI,  363 

tion  may  be  defined  as  a  body  of  precepts,  "written  or 
unwritten,  designed  to  control  governmental  action  until 
modified  in  some  authorized  manner."  Constitutional  law 
is  the  body  of  rules  and  principles  which  the  courts  adopt 
in  the  application  and  construction  of  these  precepts. 
One  of  the  chief  differences  between  an  unwritten  and  a 
written  constitution  is  the  difference  in  the  method  of 
amendment  or  alteration.  For  instance,  in  England  where 
the  constitution  is  unwritten,  it  is  changed  in  the  same 
manner  that  an  ordinary  statute  is  passed,  by  an  act  of 
Parliament.  In  the  United  States,  however,  the  method 
of  amending  the  constitution  is  much  more  formal  and 
requires  a  far  more  elaborate  process  than  the  enactment 
of  a  statute,  the  theory  being  that  only  those  things  are 
put  in  the  written  constitution  which  are  so  fundamental 
as  to  require  their  being  placed  beyond  the  reach  of  hasty 
or  ill-considered  action. 

Two  very  important  results  have  followed  from  this 
difference,  and  they  are  that  in  America  the  legislatures 
are  much  less  free  than  in  England,  and  the  judiciary  is 
made  the  guardian  of  the  constitution.  Since  our  legis- 
latures can  not  change  the  constitution  their  acts  are  sub- 
ject to  its  limitations.  Since  it  is  the  function  of  the 
judiciary  to  interpret  and  apply  the  law,  the  courts  have 
reserved  the  right  to  decide  when  legislation  is  in  con- 
flict with  the  fundamental  law  of  the  constitution  and 
declare  it  void. 

In  America,  where  all  our  constitutions  are  written, 
a  constitution  may  be  defined  as  a  written  instrument, 
setting  forth  the  fundamental  law  adopted  by  the  state 
as  the  basis  of  its  government,  and  alterable  only  by 
special  process.  Constitutional  law,  then,  in  the  sense  in 
which  we  will  use  it,  is  the  body  of  rules  and  principles 
followed  by  the  courts  in  the  construction  and  application 
of  this  instrument. 


364  ELEMENTARY    I,AW  [_§  587 

§  587.  The  American  doctrine  of  constitutional  law. 
■ — Professor  Maine  says  the  Supreme  Court  of  the  United 
States  is  the  unique  and  important  contribution  of  Amer- 
ica to  the  science  of  government.  He  speaks,  of  course, 
of  its  transcendent  power  to  annul  an  act  of  the  legisla- 
ture approved  by  the  executive,  when,  in  the  opinion  of 
the  court,  the  act  in  question  is  contrary  to  the  provisions 
of  the  constitution.  This  power  was  disputed  soon  after 
the  adoption  of  the  constitution.  It  has  never  been  de- 
nied since  Chief  Justice  Marshah  uttered  those  memorable 
words  in  his  opinion  in  the  case  of  Marbury  v.  Madison, 
1  Cranch  (U.  S.)  177.  He  says:  "It  is  emphatically  the 
province  and  duty  of  the  judicial  department  to  say  what 
the  law  is.  Those  who  apply  the  rule  to  particular  cases 
must  of  necessity  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  court  must  decide 
on  the  operation  of  each.  So  if  a  law  be  in  opposition 
to  the  constitution,  if  both  the  law  and  the  constitution 
apply  to  a  particular  case,  so  that  the  court  must  either 
decide  that  case  conformably  to  the  law,  disregarding  the 
constitution,  or  conformably  to  the  constitution,  diregard- 
ing  the  law,  the  court  must  determine  which  of  these  con- 
flicting rules  governs  the  case.  This  is  the  very  essence 
of  judicial  duty.  If  then  the  courts  are  to  regard  the 
constitution,  and  the  constitution  is  superior  to  any  ordi- 
nary act  of  the  legislature,  the  constitution,  and  not  such 
ordinary  act,  must  govern  the  case  to  which  they  both 
apply.  Those,  then,  who  controvert  the  principle  that  the 
constitution  is  to  be  considered  in  court  as  a  paramount 
law  are  reduced  to  the  necessity  of  maintaining  that 
courts  must  close  their  eyes  on  the  constitution  and  see 
only  the  law.  This  doctrine  would  subvert  the  very 
foundation  of  all  written  constitutions.  It  would  declare 
that  an  act  which,  according  to  the  principles  and  theory 
of  our   government,   is   entirely   void   is   yet,    in   practice, 


§  589]  CONSTITUTIONAL  I.AW  IN  GENERAL  365 

completely  obligatory.  It  would  declare  that  if  the  legis- 
lature shall  do  what  is  expressly  forbidden,  such  act,  not- 
withstanding the  express  prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature  a  practical  and  real 
omnipotence  with  the  same  breath  which  professes  to 
restrict  their  powers  within  narrow  limits.  It  is  pre- 
scribing limits  and  declaring  that  those  limits  may  be 
passed  at  pleasure." 

§  588.  Legal  importance  of  the  American  doctrine 
of  constitutional  law. — The  American  doctrine  is  in  di- 
rect contrast  to  the  European  practice,  where  the  main 
departments  of  government  are  left  free  to  determine 
their  own  constitutional  limitations.  The  practical  result 
of  the  above  is  that  European  constitutions  are  in  fact 
only  moral  or  political  checks  upon  governmental  action, 
and  their  courts  can  not  set  aside  laws  and  orders  when 
in  conflict  with  them,  but  are  limited  to  their  construc- 
tion and  application.  In  England,  where  Parliament  is 
supreme,  the  courts  have  a  duty  to  perform  in  interpret- 
ing statutes,  but  they  have  no  power  to  disallow  laws 
because  in  conflict  with  the  constitution.  In  America, 
however,  the  constitution  is  made  a  legal  restraint  upon 
all  governmental  action.  It  thus  vitally  affects  public  and 
private  interests,  and  much  of  our  important  litigation 
turns  solely  upon  questions  of  constitutional  construction. 
When  a  law,  order  or  judgment  is  held  to  be  un- 
constitutional and  void,  the  general  rule  is  that  private 
rights  affected  by  them  enjoy  the  same  status  as  if  the 
law,  order  or  judgment  never  had  been  made.  It  has 
been  said  that  when  a  law  is  declared  void,  it  is  the  same 
in  effect  as  if  it  never  had  been  passed.  The  statement, 
however,  is  subject  to  some  exceptions. 

§  589.     Arrangement    of   the    subject. — The    subject 


366  ELEMENTARY    LAW  [§  590 

of  constitutional  law  is  treated  in  three  chapters,  this  one 
dealing  with  the  general  conceptions  of  the  subject,  the 
second  dealing  with  the  fundamental  rights  guaranteed 
by  the  state  and  federal  constitutions,  and  the  third  deal- 
ing with  the  federal  government,  its  powers  and  duties 
and  its  relations  with  the  state  governments.  The  excel- 
lent arrangement  used  by  Professor  James  P.  Hall  in  his 
text  on  Constitutional  Law  is  largely  followed  in  these 
chapters. 

§  590.  The  separation  of  powers. — The  federal  and 
all  of  the  state  constitutions  either  expressly  or  impliedly 
provide  for  the  theory  of  separation  of  powers.  By  this 
doctrine  all  the  powers  of  government  are  divided  between 
the  three  departments,  the  executive,  the  legislative  and 
the  judicial.  Each  of  these  departments  is  supreme  in 
its  sphere  of  action.  It  was  thought  that  by  thus  dividing 
the  powers  that  a  check  could  be  secured  against  the 
executive  tyranny,  an  abuse  which  the  fathers  greatly 
feared.  This  scheme  has  resulted  in  two  general  princi- 
ples of  constitutional  law,  as  follows :  First,  each  depart- 
ment is  limited  to  the  performance  of  acts  properly  per- 
taining to  the  functions  of  that  department.  Second, 
each  department  in  the  performance  of  its  peculiar  func- 
tions is  independent  of  control  or  regulation  by  the  other 
department.  Thus  it  has  been  held  that  a  legislature  can 
not  impose  duties  nonjudicial  in  their  nature  upon  the 
judiciary,  and  that  judicial  powers  can  not  be  exercised 
by  the  legislative  or  the  executive  departments.  It  has 
also  been  held  that  the  governor  of  the  state  can  not 
be  made  a  defendant  to  a  proceeding  before  the  court, 
since  that  would  violate  the  theory  of  complete  separation 
of  powers.  There  are  exceptions  to  these  general  rules,  a 
discussion  of  which  is  prevented  by  the  limits  of  space. 


CHAPTER  XLVI 


FUNDAMENTAL  CONSTITUTIONAL  RIGHTS 


Sec. 

591.  Fundamental  constitution- 

al rights. 

592.  Citizenship    and    naturali- 

zation. 

593.  Suffrage. 

594.  Freedom  of  speech  and  of 

the  press. 

595.  The  right  to  assemble. 

596.  The  right  to  bear  arms. 

597.  Religious  liberty. 

598.  Protection  to  persons  ac- 

cused of  crime. 

599.  Due    process    of    the    law 

and  protection  of  the 
law  in  regard  to  proced- 
ure. 


Sec. 
600. 


601. 


602. 


603. 


Due  process  and  equal 
protection  of  the  law  in 
regard  to  the  police 
power. 

Due  process  of  law  and 
equal  protection  of  the 
law  in  regard  to  taxa- 
tion. 

Due  process  and  equal 
protection  of  law  in  re- 
gard to  eminent  do- 
main. 

Laws  impairing  the  obli- 
gation of  contracts. 


§  591.  Fundamental  constitutional  rights. — Perhaps 
the  most  important  branch  of  constitutional  law  is  that 
dealing  with  the  fundamental  rights.  The  framers  of  our 
constitution  thought  that  there  were  some  individual  rights, 
such  as  those  of  life,  liberty  and  property,  with  which  the 
government  should  not  arbitrarily  interfere,  consequently 
they  wrote  them  into  our  constitution,  and  they  can  not 
now  be  altered  or  impaired  except  by  constitutional  amend- 
ment. The  purpose  of  this  chapter  is  to  briefly  review 
these  fundamental  rights  and  to  determine  their  scope 
and  meaning. 

§  592.  Citizenship  and  naturalization. — Citizenship 
is  membership  in  a  political  community  or  group.  In  this 
country  there  are  two  kinds  of  citizenship  and  allegiance 

367 


368  ELEMENTARY    L,AW  [§  592 

— one  national  and  the  other  state.  It  is  for  congress  to 
determine  who  shall  enjoy  the  privileges  of  national 
citizenship  within  the  limits  prescribed  by  the  constitution, 
and  the  laws  of  the  several  states  fix  the  conditions  under 
which  state  citizenship  is  acquired.  No  state  can  make 
or  enforce  a  law  which  shall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States.  This  is  a 
provision  of  the  Constitution  of  the  United  States — and 
any  state  law  to  the  contrary  is  void.  It  is  further  pro- 
vided in  the  constitution  that  the  citizens  of  each  state 
shall  be  entitled  to  all  privileges  and  immunities  of  citi- 
zens in  the  several  states.  The  right  of  a  citizen  to 
expatriate  himself  and  become  a  subject  of  another  nation 
was  questioned  in  this  country  until  congress  passed  a 
law  recognizing  such  right. 

Citizenship  is  acquired  by  birth  or  naturalization.  The 
fourteenth  amendment  provides  that  "all  persons  born  or 
naturalized  in  the  United  States  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of 
the  state  wherein  they  reside."  Congress  has  also  pro- 
vided by  law  that  all  persons  born  outside  of  the  limits 
of  the  United  States,  whose  fathers  are  at  that  time 
citizens  thereof,  shall  be  deemed  citizens. 

The  power  over  naturalization  is  vested  in  congress. 
It  is  within  the  power  of  the  states  to  adopt  citizens  on 
easier  terms  than  the  laws  of  congress  may  impose,  but 
they  have  no  power  to  exclude  from  citizenship  those  who 
have  been  naturalized  according  to  the  laws  of  congress. 
By  these  laws  the  applicant,  who  must  be  a  white  person 
or  a  person  of  African  descent,  must  make  their  oath 
before  the  proper  officer,  at  least  two  years  before  his 
admission,  that  it  is  his  intention  to  become  a  citizen,  and 
renounce  his  allegiance  to  his  own  sovereign.  At  his  final 
admission  to  citizenship  he  shall  make  oath  that  he  will 
support  the  Constitution  of  the  United  States  and  re- 


§  593]  FUNDAMENTAL    CONSTITUTIONAL    RIGHTS  369 

ziounce  all  allegiance  to  any  foreign  power,  especially  his 
own  sovereign.  His  application  must  be  in  his  own  hand- 
writing. He  must  prove  by  at  least  two  citizens  that  he 
has  resided  in  the  United  States  five  years ;  that  he  has 
been  a  moral  person  and  is  attached  to  and  well  disposed 
toward  the  principles  of  this  government.  He  must  also 
renounce  all  titles  to  nobility,  if  he  have  any.  Children 
of  naturalized  parents,  who  were  under  age  when  the 
parents  were  naturalized,  shall,  if  residing  in  the  United 
States,  be  considered  citizens. 

Congress  also  has  the  power  to  provide  for  collective 
naturalization.  By  fully  incorporating  newly  acquired  ter- 
ritory into  the  United  States  it  may  make  all  of  the 
inhabitants  of  the  territory  citizens  of  the  United  States. 
Collective  naturalization  may  also  be  accomplished  by 
providing  for  it  in  a  treaty  by  which  the  territory  is 
acquired. 

§  593.  Suffrage. — The  federal  constitution  has  but 
few  provisions  regarding  suffrage.  It  has  left  to  the 
state  the  fixing  of  the  suffrage  qualifications  for  congress- 
men and  presidential  electors.  The  constitution  provides 
that  "the  electors  in  each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of 
the  state  legislature."  The  president  and  vicepresident  of 
the  United  States  are  elected  by  presidential  electors 
whom  "each  state  shall  appoint  in  such  manner  as  the 
legislature  thereof  shall  direct."  The  fifteenth  amendment 
provides  that  the  right  to  vote  shall  not  be  denied  or 
abridged  "on  account  of  race,  color  or  previous  condition 
of  servitude."  The  result  of  these  constitutional  provisions 
is  that  the  matter  of  suffrage  both  for  state  and  federal 
officers  is  left  to  the  individual  state,  subject  to  the  pro- 
visions of  the  fifteenth  amendment,  above  quoted,  and  to 
the  condition  set  forth  in  section  two  of  the  fourteenth 
24 — Elem.  Law. 


370  ELUMEINTARY    LAW  [§  594 

amendment,  which  provides  for  the  reduction  of  the  con- 
gressional representation  of  any  state  who  denies  the 
right  of  suffrage  to  its  male  inhabitants  who  are  twenty- 
one  years  of  age  and  citizens  of  the  United  States.  Al- 
though some  of  the  states  have  adopted  qualifications 
resulting  in  such  denial,  congress  has  not  seen  fit  to 
reduce  their  representation.  Most  of  the  states  write 
their  suffrage  qualifications  into  their  constitutions  al- 
though in  a  few  cases  the  matter  is  left  in  some  degree 
to  the  discretion  of  the  legislature. 

§  594.     Freedom  of  speech  and  of  the  press. — The 

Constitution  of  the  United  States  and  of  the  several 
states  prohibit  the  enactment  of  any  laws  restricting  the 
right  to  speak,  write  or  print  freely  on  any  subject.  The 
intent  of  these  provisions  is  to  forbid  political  censorship 
or  control  by  persons  who  exercise  the  power  of  the 
state.  Freedom  of  speech  or  press  is  not  thereby  enlarged, 
but  only  protected  against  invasion.  There  is  no  unlimited 
freedom  of  speech  or  press.  The  right  must  be  exercised 
subject  to  the  bounds  fixed  by  law.  Liberty  of  the  press 
consists  in  printing  without  any  previous  license,  but  sub- 
ject to  the  consequences  of  law. 

The  right  of  free  speech  and  press  does  not  warrant 
a  man's  using  blasphemous,  obscene  or  seditious  language. 
Legislation  directed  against  such  speaking,  writing  or 
printing  is  uniformly  held  to  be  constitutional. 

§  595.  The  right  to  assemble. — The  right  of  citi- 
zens to  assemble  in  a  peaceable  manner  to  consult  for 
their  common  good  is  a  political  right  that  is  generally 
secured  by  the  constitutions  of  the  states. 

The  federal  constitution  also  provides  that  congress 
shall   make    no    law    abridging    "the    right    of   the   people 


§  598]  FUNDAMENTAL,    CONSTITUTIONAL,    RIGHTS  371 

peacefully   to   assemble,    and   to   petition   the   government 
for  a  redress  of  grievances." 

These  provisions  do  not  prohibit  regulations  forbid- 
ding disorderly  assemblages  or  demonstrations  or  those 
held  at  unreasonable  times  and  places. 

§  596.  The  right  to  bear  arms. — This  right  is  guar- 
anteed by  federal  and  state  constitutions  to  every  citizen. 
As  used  in  the  constitutions  the  word  "arms"  has  the 
military  sense  and  refers  to  such  weapons  as  are  suitable 
for  the  general  defense  of  the  community,  and  does  not 
include  such  weapons  as  are  peculiarly  adapted  to  indi- 
vidual encounters.  Therefore  it  would  not  be  unconstitu- 
tional to  prohibit  the  carrying  of  such  weapons  as  the 
slungshot.  The  constitution  does  not  forbid  the  passage 
of  laws  against  carrying  weapons  concealed  or  against 
carrying  weapons  openly  with  intent  to  use  them  unlaw- 
fully. 

§597.  Religious  liberty. — The  federal  constitution 
provides  that  "congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof."  A  similar  provision  is  found  in  most  of  the 
state  constitutions.  These  provisions  do  not  guarantee 
freedom  of  religious  practices,  but  freedom  of  religious 
thought  or  belief.  Thus  polygamy  may  be  constitutional- 
ly prohibited  though  carried  on  as  a  religious  practice, 
but  a  law  making  legal  or  political  rights  dependent  upon 
one's  religious  beliefs  would  be  a  violation  of  religious 
liberty. 

§  598.  Protection  to  persons  accused  of  crime. — 
The  federal  and  state  constitutions  contain  a  number  of 
provisions  designed  to  protect  persons  accused  of  crime 
from   possible   abuses   of  the  criminal   administration   by 


372  ELEMENTARY    LAW  [§  598 

the  state  or  Its  officers.  The  federal  constitution  prohibits 
both  the  general  government  and  the  state  governments 
from  passing  any  bills  of  attainder  or  ex  post  facto  laws. 
A  bill  of  attainder  is  "a  legislative  act  which  inflicts  pun- 
ishment without  a  judicial  trial."  An  ex  post  facto  law 
is  a  law  which  changes  the  legal  status  of  an  act  after 
it  has  been  done,  to  the  prejudice  of  the  person  accused 
of  the  act.  Thus  a  law  making  an  act  a  crime  which  was 
innocent  when  it  was  performed  is  void.  The  federal 
constitution  and  most  of  the  state  constitutions  contain 
provisions  that  no  person  shall  be  compelled  to  testify 
against  himself  in  a  criminal  prosecution.  Under  this 
provision  a  person  being  tried  for  the  commission  of  a  crime 
can  not  be  compelled  to  give  testimony  that  is  self- 
incriminating.  Of  somewhat  the  same  nature  is  the  pro- 
vision of  the  fourth  amendment  of  the  federal  constitu- 
tion and  similar  provisions  in  the  state  constitution 
against  unwarranted  searches  and  seizures.  The  pur- 
pose of  these  provisions  is  not  only  to  protect  people 
from  unwarranted  searches  and  seizures,  but  also  to 
prevent  the  seizure  of  a  man's  books  and  papers  and 
other  articles  to  be  used  in  evidence  against  him. 

The  federal  constitution  provides  that  in  the  federal 
courts  all  civil  suits  at  common  law  involving  over  twenty 
dollars  shall  be  tried  by  jury  and  all  criminal  trials  shall 
be  by  jury.  The  various  states  have  different  provisions 
regarding  jury  trial  and  it  has  been  held  that  the  "due 
process"  provision  of  the  fourteenth  amendment  does 
not  require  state  courts  to  observe  jury  trials.  The  fifth 
amendment  of  the  federal  constitution  provides  that  no 
person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime  except  upon  presentment  or  indictment 
by  the  grand  jury.  This  provision  applies  only  to  the 
federal  government.  Many  state  constitutions  have  the 
same  provisions,  however. 


§  599]  FUNDAMENTAL    CONSTITUTIONAL    RIGHTS  373 

Both  state  and  federal  constitutions  also  contain  pro- 
visions against  excessive  bail,  excessive  fines,  and  cruel 
and  unusual  punishments.  They  also  contain  provisions 
to  the  effect  that  no  person's  life  or  limbs  shall  be  placed 
twice  in  jeopardy  for  the  same  act. 

§  599.  Due  process  of  the  law  and  equal  protection  of 
the  laws  in  regard  to  procedure. — The  fifth  amendment 
and  fourteenth  amendment  of  the  federal  constitution  for- 
bid the  general  government  and  the  states  respectively 
from  depriving  any  person  of  life,  liberty  or  property 
without  due  process  of  law.  The  fourteenth  amendment 
also  prohibits  any  state  from  denying  "to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 
The  principle  back  of  these  provisions  is  not  that  the 
government  shall  never  in  any  way  interfere  with  life, 
liberty  or  property,  w^here  such  interference  is  deemed 
necessary  to  preserve  the  public  welfare,  but  its  real 
meaning  is  that  it  shall  not  under  the  guise  of  advanc- 
ing the  public  welfare,  unreasonably  and  arbitrarily  in- 
terfere with  the  life,  liberty  and  property  of  individuals. 
These  guaranties  apply  to  procedure  as  well  as  to 
substantive  law.  They  do  not  guarantee  any  particular 
kind  of  procedure,  but  they  do  protect  the  citizen  against 
any  kind  of  procedure  that  is  arbitrary  or  contrary  to 
the  established  laws  of  the  land.  Thus  where  the  law  pro- 
vides that  in  certain  kinds  of  judicial  procedure  notice 
and  hearing  must  be  given  to  the  party  affected  and  notice 
and  hearing  is  not  given,  the  proceedings  will  be  void  and 
any  judgment  affecting  life,  liberty  or  property  will  be 
without  due  process  of  law  and  void.  So  where  negroes 
were  prohibited  from  serving  on  juries  and  a  negro  was 
being  tried  it  was  held  that  his  conviction  was  void,  since 
his  trial  under  such  conditions  amounted  to  a  denial  of 
equal  protection  of  the  law.    Due  process  of  law,  however, 


274  EI.KMENTARY    I^W  [§  600 

does  not  always  guarantee  judicial  proceedings,  but  it 
does  secure  proceedings  in  accordance  with  the  law 
and  guarantees  against  those  that  are  arbitrary  and  un- 
just. 

§  600.  Due  process  and  equal  protection  of  the  laws 
in  regard  to  the  police  power. — The  police  power  may 
be  roughly  defined  as  the  power  of  the  state  to  regulate 
conduct  and  property  in  the  interest  of  the  public  wel- 
fare. It  is  under  this  power  that  the  state  regulates  hours 
of  labor,  public  morals,  safety  and  convenience,  and  makes 
similar  provisions  in  the  interests  of  the  state.  In  mak- 
ing these  provisions  the  state  is  subject  to  the  limitations 
of  the  due  process  and  equal  protection  of  the  laws  pro- 
visions of  the  fourteenth  amendment.  As  observed  in  the 
foregoing  section,  these  limitations  do  not  protect  the 
state  from  interfering  with  life,  liberty  and  property 
where  necessary  to  preserve  the  public  welfare.  They  do, 
however,  prohibit  arbitrary  inference  under  the  guise  of 
reasonable  regulation.  The  difficult  question,  then,  is  to 
determine  when  a  given  law  is  a  reasonable  regulation 
and  when  it  is  an  arbitrary  interference.  That  in  turn 
depends  upon  the  answer  to  the  question  as  to  whether 
or  not  the  law  before  the  court  can  conceivably  have  any 
reasonable  relation  or  connection  with  the  public  welfare. 
If  there  is  such  a  conceivable  relation,  the  court  will  hold 
it  valid  even  though  it  thinks  the  law  to  be  unwise  and 
unjust.  Where,  however,  the  court  finds,  as  a  matter  of 
fact,  that  there  is  no  such  conceivable  relation  and  that 
the  law  does  invade  the  right  of  life,  liberty  and  prop- 
erty, then  they  will  hold  it  void  as  an  unconstitutional 
interference  with  private  rights.  Thus  where  a  state 
prohibited  minors  from  working  more  than  eight  hours 
a  day  underground  it  was  contended  that  that  was  an 
unconstitutional    interference   with    the    liberty   of   the 


§  601]  FUNDAMENTAI,    CONSTITUTIONAL    RIGHTS  375 

miner  to  work  under  such  conditions  as  he  pleased.  The 
court  held,  however,  that  since  the  statute  had  a  rela- 
tion to  the  health  and  welfare  of  the  citizens  of  the 
state,  it  was  not  an  arbitrary  interference  with  liberty, 
but  a  reasonable  regulation  and  therefore,  not  prohib- 
ited by  the  provisions  of  the  fourteenth  amendment. 
Where  a  tenement-house  owner  was  compelled  to  make 
expensive -improvements  in  order  to  put  the  tenements 
in  sanitary  condition,  he  objected  to  the  validity  of  the 
law  as  an  interference  with  his  rights  of  property,  but 
the  court  held  that  it  was  a  reasonable  regulation  cal- 
culated to  preserve  the  public  health  and  not  an  unwar- 
ranted invasion  of  private  property. 

§  601.  Due  process  of  law  and  equal  protection  of 
the  law  in  regard  to  taxation. — The  constitution  of 
the  states  and  the  federal  government  all  make  more  or 
less  extensive  provisions  limiting  and  regulating  the 
state's  power  to  tax.  These  regulations  must  be  observed 
if  the  tax  is  to  be  valid.  The  most  important  limitations 
upon  the  taxing  power,  however,  are  found  in  the  due 
process  and  equal  protection  of  the  laws  which  the  con- 
stitution guarantees.  To  bring  taxation  within  these  pro- 
visions three  things  are  necessary :  first,  that  the  state 
must  have  jurisdiction  of  the  thing  taxed;  second,  that 
the  tax  must  be  levied  for  a  public  purpose;  and  thirdly, 
that  the  classification  of  the  objects  taxed  shall  not  be 
based  upon  an  arbitrary  and  accidental  basis.  To  tax 
property  without  complying  with  these  qualifications 
amounts  to  taking  of  property  without  due  process  of 
law  and,  therefore,  such  taxation  is  void.  Whether  the 
government  has  jurisdiction  of  the  thing  taxed  depends 
upon  whether  it  has  a  legal  situs  within  the  limits  of  the 
state.  Real  estate  and  tangible  chattels  may  be  taxed  in 
a  state  where  they  are  actually  situated.     Debts  have  a 


376  ElvEMENTARY    I,AW  [§  602 

taxable  situs  at  the  domicile  of  the  creditor.  Thus,  if  a 
state  levies  a  tax  upon  real  property  situated  in  another 
state,  such  a  tax  is  void,  since  jurisdiction  is  lacking. 
Just  what  is  a  taxable  situs  for  some  kinds  of  property- 
presents  many  difficult  and  technical  questions  which  can 
not  be  treated  here. 

Where  a  state  attempted  to  authorize  a  municipality 
to  tax  for  the  benefit  of  certain  private  individuals,  the 
tax  was  held  to  be  void,  since  it  was  not  for  a  public  pur- 
pose. To  allow  the  state  to  take  money  out  of  the  hands 
of  A,  through  its  power  of  taxation,  and  pay  it  into 
the  hands  of  B,  amounts  to  taking  of  property  with- 
out due  process. 

If  a  state  should  tax  men  who  had  red  hair  and  not 
other  men,  the  tax  would  be  void,  as  the  taking  of  prop- 
erty without  due  process  and  as  a  denial  of  equal  protec- 
tion of  the  law.  Such  classification  has  nothing  but  an 
arbitrary  and  accidental  basis.  However,  the  state  may 
tax  houses  and  not  barns,  and  may  tax  cattle  and  not  tax 
horses.  Such  classifications  are  not  based  upon  arbitrary 
and  accidental  considerations,  but  upon  considerations  that 
may  conceivably  be  pertinent  to  the  question  of  taxation. 

§  602.  Due  process  and  equal  protection  of  law  in 
regard  to  eminent  domain. — The  federal  and  state  con- 
stitutions provide  that  where  private  property  is  taken 
for  a  public  use  just  compensation  must  be  made.  What 
constitutes  a  public  purpose  is  a  very  difficult  question 
to  determine,  but  the  courts  generally  agree  that  where 
the  purpose  is  a  broad  one,  involving  the  health,  welfare, 
safety  and  convenience  of  the  community,  that  it  is  a 
public  purpose.  There  is  some  conflict  of  authority  as  to 
whether  aesthetic  consideration  amounts  to  a  public  pur- 
pose the  weight  of  authority  holding  that  it  is  not.  To 
take  property  under  eminent  domain,  but  not  for  public 


§  603]  FUNDAMBNTAi,    CONSTITUTIONAL,   RIGHTS  377 

purpose,  would  not  only  violate  the  constitutional  pro- 
visions regarding  eminent  domain,  but  would  also  be 
the  taking  of  property  without  due  process. 

The  question  frequently  arises  as  to  what  constitutes 
a  taking  and  it  is  generally  held  that  any  physical  occupa- 
tion or  substantial  intrusion  of  tangible  material  upon 
the  property  amounts  to  a  taking.  Thus  it  has  been  held 
that  a  substantial  flooding  of  land  by  water  amounted  to 
a  taking,  but  that  a  ringing  of  a  bell  which  was  a  nuisance 
or  the  pollution  of  the  atmosphere  by  certain  gas  was  not 
a  taking  within  the  meaning  of  the  constitution. 

§  603.     Laws  impairing  the  obligation  of  contracts. 

— The  federal  constitution  provides  that  "no  state  shall 
pass  any  law  impairing  the  obligation  of  contracts." 
There  is  no  such  expressed  provision  applying  to  the 
federal  government,  but  it  has  been  held  that  contracts 
are  property  and,  therefore,  the  federal  government  is 
prevented  from  interfering  with  them  by  the  fifth  amend- 
ment which  forbids  the  taking  of  property  without  due 
process.  Grants,  corporation  charters,  and  ordinary  agree- 
ments have  been  held  to  be  contracts  within  the  meaning 
of  this  provision.  An  impairment  of  the  obligation  of  a 
contract  is  anything  which  prevents  one  of  the  parties 
from  performing  or  which  materially  impairs  the  remedies 
for  the  breach  of  the  contract.  .  Thus,  it  has  been  held 
that  a  state  law  postponing  or  impeding  a  collection  of 
debts  by  creditors  is  unconstitutional  and  void.  A  statute 
of  frauds  embracing  a  pre-existing  contract  not  before 
required  to  be  in  writing  is  void  as  in  conflict  with  this 
provision.  A  state  law  repudiating  its  bond  issue  or  re- 
fusing to  accept  bonds  in  payment  for  taxes  as  was 
previously  provided  is  unconstitutional  on  the  same 
grounds.  In  the  historic  Dartmouth  College  case  it  was 
held  that  a  statute  changing  the  terms  of  the  charter  was 


378  ELEMENTARY    LAW  [§  603 

an  impairment  of  contract  obligations  and  void.  It  is 
held,  however,  that  all  contracts  are  made  subject  to  the 
state's  power  of  regulation  in  the  interest  of  the  public 
welfare.  Thus,  it  has  been  held  that  a  charter  issued  to 
a  corporation  to  carry  on  the  lottery  business  may  be  re- 
pealed by  a  subsequent  statute  forbidding  the  lottery  busi- 
ness altogether.  Where  two  private  parties  contract  to 
go  into  the  liquor  business,  a  subsequent  law  prohibiting 
the  liquor  business  is  valid,  although  it  makes  impossible 
the  performance  of  the  contract. 


CHAPTER  XLVII 


FEDERAL  GOVERNMENT 


Sec. 
604. 

605. 

606. 
607. 


Federal  powers  and  their 
exercise. 

Territories,  dependencies 
and  new  states. 

Interstate  commerce. 

State  regulation  and  taxa- 
tion affecting  interstate 
commerce. 


Sec. 
608. 

609. 
610. 


Federal  treaty-making 
power. 

Interstate  privileges  and 
immunities  and  other  in- 
terstate relations. 

Relations  between  state 
and  federal  government. 


§  604.     Federal    powers    and    their    exercise. — The 

federal  government  is  a  government  of  delegated  powers- 
In  this  it  differs  from  the  state  governments  which  are 
governments  of  residuary  powers.  The  federal  govern- 
ment has  only  those  powers  which  are  especially  granted 
in  the  constitution  or  those  reasonably  implied.  The  state 
government  has  all  the  powers  that  belong  to  government 
except  those  exclusively  granted  to  the  federal  government, 
those  denied  to  it  by  the  federal  constitution,  or  those 
denied  to  it  by  its  own  fundamental  laws.  A  state  law 
is  valid  unless  it  can  be  shown  that  it  is  in  conflict  with 
some  provision  of  the  state  or  federal  constitution;  on 
the  other  hand,  a  federal  statute  is  void  unless  it  can  be 
shown  that  there  is  some  expressed  or  implied  authority 
in  the  federal  constitution  authorizing  the  passage  of  such 
an  act.  Where  congress  is  given  power  over  a  subject  its 
power  is  complete  and  it  is  subject  to  no  limitations 
except  such  as  may  be  found  in  the  federal  constitution 
itself.  Thus,  it  has  been  held  that  since  congress  has  the 
power   to   regulate   commerce,    its   power   >3ver   commerce 

379 


380  i:IvE;mentary  law  [§  605 

is  complete  and,  therefore,  it  can  prohibit  the  sending  of 
lottery  tickets  from  one  state  to  another.  Over  some 
subjects,  such  as  bankruptcy,  congress  and  the  states  have 
concurrent  power.  In  case  of  a  conflict,  the  federal 
powers  are  always  supreme. 

§  605.     Territories,  dependencies  and  new  states. — 

The  federal  constitution  does  not  expressly  give  to  the 
federal  government  the  right  to  acquire  new  territory. 
But  this  right  has  been  held  to  exist  and  is  implied  from 
those  groups  of  powers  delegated  to  the  federal  govern- 
ment which  give  it  complete  control  over  the  external 
relations  of  the  government.  The  constitution  does  pro- 
vide, however,  that  "the  congress  shall  have  power  to 
dispose  of,  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to 
the  United  States."  It  has  been  held  from  this  grant, 
and  from  the  implied  powers  to  acquire  territory,  that 
the  United  States  has  full  governmental  power  over  all 
the  territories  of  the  United  States  not  incorporated  into 
states.  In  such  territory,  the  power  of  the  federal  gov- 
ernment is  supreme  and  plenary,  subject  only  to  such  of 
the  fundamental,  constitutional  limitations  as  are  ap- 
plicable thereto.  Thus  congress  can  prescribe  the  form 
of  government,  make  the  laws,  and  govern  in  the  mi- 
nutest detail  the  territory  of  Alaska  or  any  other  terri- 
tory of  the  United  States,  subject  only  to  the  limitations 
noted  above. 

The  constitution  provides  that  "new  states  may  be 
admitted  by  the  congress  into  this  union."  Under  this 
authority  the  federal  government  may  incorporate  new 
territory  into  states  whenever  it  sees  fit.  Tluis  is  given 
to  congress  the  control  of  the  question  of  admission  of 
new  states  into  the  union. 


§  607 j  FEDERAI,    GOVKRNMKNT  381 

§  606.  Interstate  commerce. — The  federal  constitu- 
tion gives  to  congress  the  power  "to  regulate  commerce 
with  foreign  nations,  and  among  the  several  states,  and 
with  the  Indian  tribes."  Commerce  comprehends  any  kind 
of  commercial  or  business  intercourse.  Commerce  car- 
ried on  solely  within  the  state  is  not  subject  to  the  con- 
trol of  the  federal  government,  but  when  that  com- 
merce is  among  the  states  or  with  foreign  nations 
it  is  subject  to  federal  control.  Commerce  is  said  to 
be  foreign  or  interstate  when  it  involves  intercourse 
across  state  boundaries,  or  with  foreign  countries. 
The  question  frequently  arises  as  to  when  interstate  com- 
merce begins  and  ends  as  such.  The  rule  is  that  com- 
merce begins  from  the  time  a  continuous  journey  is  begun 
whose  ultimate  destination  takes  it  across  the  boundary 
of  the  state;  it  is  said  to  end  only  when  the  object  of  the 
journey  has  reached  its  destination  and  has  been  sold  or 
the  original  package  in  which  it  was  shipped  has  been 
broken  or  its  contents  used.  During  the  period  that  the 
object  is  engaged  in  interstate  commerce  it  is  subject  to 
the  control  of  the  federal  government,  and  is  not  subject 
to  regulation  or  control  by  the  state. 

The  power  to  regulate  commerce  includes  the  right  to 
regulate  methods  of  transportation,  to  fix  rates,  to  make 
regulations  for  the  safety  and  convenience  of  the  public, 
and  to  prevent  commerce  being  used  for  purposes  or  by 
businesses  which  derogate  from  the  public  welfare.  In 
all  these  regulations,  however,  the  federal  government  is 
subject  to  the  special  limitations  of  the  federal  constitu- 
tion. 

§  607.  State  regulation  and  taxation  affecting  inter- 
state commerce. — Any  legislation  by  the  state  dis- 
criminating against  interstate  commerce,  as  such,  is  void. 
Thus  a  law  taxing  articles  from  other  states  more  than 


382  EI<EMENTARY    LAW  [§  608 

domestic  articles  is  void.  A  state  law  providing  oppressive 
regulations  on  the  sale  of  beef  when  shipped  in  from 
other  states,  while  not  applying  to  beef  slaughtered  within 
the  state,  is  void,  as  interfering  with  interstate  commerce. 
A  state  tax  upon  interstate  commerce,  as  a  tax  upon  the 
gross  receipts  of  a  railroad,  part  of  which  was  received 
from  interstate  commerce,  is  void.  But  a  state  may  tax 
such  property  as  has  a  taxable  ^itus  within  the  state,  even 
though  the  property  is  engaged  in  the  business  of  inter- 
state commerce.  A  state  can  not  make  any  regulations 
materially  interfering  with  interstate  commerce  or  the 
right  of  persons  to  engage  in  such. 

§  608.  Federal  treaty-making  power. — The  federal 
constitution  provides  that  the  president  "shall  have  power, 
by  and  with  the  advice  and  consent  of  the  senate,  to 
make  treaties,  provided  two-thirds  of  the  senators  present 
concur."  Just  what  the  limits  of  the  treaty-making  power 
are  have  never  been  definitely  determined.  The  general 
theory  seems  to  be  that  the  federal  government  can  do 
anything  through  its  treaty-making  power  that  is  cus- 
tomarily done  through  treaties,  subject  only  to  the  express 
limitations  in  the  federal  constitution.  Thus,  it  is  pos- 
sible for  the  federal  government  to  do  by  treaty  what  it 
can  not  do  by  legislation.  For  instance,  it  can  make  a 
treaty  with  another  country,  providing  that  the  citizens 
of  that  country  shall  under  certain  conditions  inherit  land 
in  this  country,  even  though  the  constitutional  provisions 
of  the  state  involved  prohibit  such  inheritance.  In  sup- 
porting this  position  in  the  case  of  Geofroy  v.  Riggs,  the 
Supreme  Court  said:  'The  treaty  power  as  expressed  in 
the  constitution  is  in  terms  unlimited,  except  by  those 
restraints  which  are  found  in  the  instrument  against  the 
government  itself  and  that  of  the  states.  It  would  not 
be  contended  that  it  extends  so  far  as  to  authorize  what 


§  610]  FEDERAI,    GOVERNMENT  383 

the  constitution  forbids  or  a  change  in  the  character  of 
the  government  or  in  that  of  one  of  the  states,  or  a  ses- 
sion of  any  portion  of  the  territory  of  the  latter,  without 
its  consent.  But  v^ith  these  exceptions  it  is  not  perceived 
that  there  is  any  limit  to  the  questions  which  can  be 
adjusted  touching  any  matter  that  is  properly  the  subject 
of  negotiation  with  a  foreign  country." 

§  609.  Interstate  privileges  and  immunities  and 
other  interstate  relations. — The  federal  constitution 
declares  that  "the  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
states."  This  provision  means  nothing  more  nor  less  than 
that  one  state  shall  not  pass  laws  discriminating  against 
persons  because  they  are  citizens  of  other  states.  Thus 
a  state  law  prohibiting  the  right  of  inheritance  to  persons 
who  are  citizens  of  another  state  would  be  void  as  con- 
trary to  this  provision.  A  state  law  taxing  the  property 
of  the  citizens  of  other  states  at  a  higher  rate  than  it 
taxes  like  property  of  its  own  citizens  is  also  void. 

The  federal  constitution  also  provides  that  "full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records  and  judicial  proceedings  of  every  other  state; 
and  the  congress  may,  by  general  laws,  prescribe  the 
manner  in  which  such  acts,  records  and  proceedings, 
shall  be  proved,  and  the  effect  thereof."  This  provision 
enables  a  person  to  enforce  the  judgment  of  a  state 
court  in  any  state  in  which  the  other  party  may  be 
found. 

The  constitution  also  provides  for  the  extradition  of 
a  person  charged  with  treason,  felony  or  any  other  crime 
who  has  fled  to  another  state,  upon  the  demand  of  the 
executive  authority  of  the  state  from  which  he  fled. 

§  610.     Relations  between  state  and  federal  govern- 


384  ELEMEINTARY    LAW  [§  610 

ment. — The  federal  constitution  provides  that  "this 
constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding." Under  this  provision  any  conflicts  between 
the  laws  of  the  federal  and  state  governments  are  resolved 
in  favor  of  the  former.  This  also  impliedly  prohibits  the 
state  from  interfering  with  the  operation  of  any  agency 
created  by  the  federal  government  in  the  exercise  of  its 
powers.  Thus  a  state  may  not  tax  the  bank-notes  of  the 
national  bank  nor  United  States  bonds,  nor  the  salary 
of  federal  officers.  The  state  may,  however,  tax  the 
property  owned  by  private  individuals  although  such  prop- 
erty is  employed  in  the  federal  service. 

On  the  other  hand,  it  is  held  that  the  federal  govern- 
ment can  not  tax  the  property  of  the  state  government, 
the  salary  of  state  employes,  or  bonds  issued  by  the  state. 


CHAPTER  XLVIII 


ADMINISTRATIVE   LAW 


Sec. 

Sec. 

611. 

Administrative  law  in  gen- 

617. 

eral. 

618. 

612. 

Liability     of     officers     to 

619. 

suits  for  damages. 

620. 

613. 

Liability       of       legislative 

621. 

officers. 

622. 

614. 

Liability  of  executive  and 

administrative  officers. 

623. 

615. 

Liability     of     judicial 

officers. 

624. 

616. 

Mandamus. 

Nature  of  the  action. 

Quo  vi^arranto. 

How  obtained. 

Prohibition. 

Habeas  corpus. 

What    application    must 

show — Return. 
When  legality  of  restraint 

will  not  be  inquired  into. 
Certiorari. 


§611.  Administrative  law  in  general. — Administra- 
tive law  is  frequently  spoken  of  as  dealing  with  all  the 
provisions  of  the  law  regulating  the  various  matters  of 
public  administration,  such  as  the  public  schools,  elections, 
local  government  or  taxation.  In  this  country,  however, 
there  is  a  tendency  to  restrict  this  term  to  the  rules  of 
law  governing  administrative  action  affecting  private 
rights.  Its  subject-rQ.atter  then  becomes  in  the  words  of 
Professor  Freund  "the  nature  and  the  mode  of  exercise 
of  administrative  power  and  the  system  of  relief  against 
^administrative  action."  The  limitations  of  space  restrict 
us  to  but  one  phase  of  the  subject,  namely,  relief  against 
administrative  action.  The  relief  is  generallT-  secured 
through  a  suit  for  damages  against  the  officers  or  govern- 
ment, or  through  the  extraordinary  legal  remedies,  or 
through  appeals  to  the  judiciary.  This  chapter  is  confined 
to  the  first  two  methods  of  relief,  which  are  based  upon 
general  principles  of  the  common  law.  The  remedy 
through  appeal  is  open  only  when  provided  for  by  statute. 
25— Elem.  Law.  385 


386  ElvEMENTARY    LAW  [§  612 

§  612.     Liability  of  officers  to  suits  for  damages. — 

Wherever  the  law  clothes  one  or  more  persons  with  power 
and  imposes  the  duty  to  do  certain  acts,  the  corresponding 
right  exists  in  tlie  pubHc  or  in  individuals  to  have  that 
duty  correctly  and  honestly  performed.  The  duty  may 
be  violated  either  through  mere  honest  error,  or  through 
malicious  and  corrupt  motives.  But  it  is  not  for  every 
such  violation  that  the  law  gives  a  remedy,  and  for  some 
violations  the  only  rem.edy  is  in  an  action  by  the  state, 
by  mandamus  or  prohibition,  by  indictment  or  by  im- 
peachment. 

In  order  to  determine  what,  if  any,  remedy  exists,, 
the  act  in  question  must  be  submitted  to  several  tests. 

One  test  is  whether  the  act  was  within  or  in  excess 
of  the  authority  conferred.  If  within  authority  the  officer 
is  generally  protected,   if  in  excess  he  may  not  be. 

Another  test  is  whether  the  act  in  question  be  one  that 
involves  the  exercise  of  judgment  or  discretion  as  to  the 
manner  and  propriety  of  doing  it,  or  whether  it  is  merely 
ministerial,  that  is,  the  manner  and  propriety  of  its  per- 
formance is  precisely  fixed  by  law.  For  acts  of  the  dis- 
cretionary kind  the  officer  generally  enjoys  immunity  from 
suit;  for  acts  that  are  merely  ministerial,  he  may  be  held 
responsible  in  legal  proceedings. 

Still  another  test  lies  in  the  effect  of  the  act  in  ques- 
tion. Every  violation  of  official  duty  is  in  some  sense 
an  injury  to  both  the  public,  as  a  whole,  and  to  every 
individual  of  the  community.  There  are,  however,  some 
official  duties  that  are  imposed  primarily  for  the  public 
benefit,  and  that  affect  individuals  only  incidentally;  and 
again  there  are  duties  that  are  imposed  primarily  for  indi- 
vidual benefit,  though  they  may  also  have  an  incidental 
public  effect.  For  example,  on  the  one  hand  there  is 
embezzlement  of  public  funds  by  an  officer;  on  the  other 
hand,  refusal  by  a  sheriff  to  execute  a  lawful  civil  writ. 


§  614]  ADMINISTRATIVE    LAW  387 

In  the  former  case  there  is  no  private  right  of  action, 
but  the  remedy  is  confined  to  the  state;  in  the  latter  case, 
the  one  specially  injured  may  generally  have  redress. 

It  will  be  of  advantage  to  consider  more  in  detail  the 
acts  of  various  official  bodies  and  persons,  in  order  to 
ascertain  the  quality  of  the  acts,  and  the  remedies,  if  any, 
that  are  given. 

§  613.  Liability  of  legislative  officers. — It  is  obvi- 
ous that  all  of  the  legislature's  acts  are  governmental  and 
discretionary.  In  their  nature,  its  powers  are  exercised 
primarily  for  the  public  benefit  and  only  secondarily  for 
private  benefit.  The  legislature  as  a  body  can  have  no 
ministerial  duties  to  perform.  Hence,  even  though  the 
majority  or  all  of  the  legislators  may,  in  a  special  in- 
stance, have  acted  from  malicious  and  corrupt  motives, 
whereby  injury  has  been  caused  to  an  individual,  there 
can  be  no  remedy  by  private  suit. 

Subordinate  legislative  bodies,  however,  such  as  munic- 
ipal councils,  may  have  duties  to  perform  that  are  merely 
ministerial;  for  example,  keeping  streets  in  repair.  For 
the  wrongful  performance  or  nonperformance  of  such 
duties,  if  primarily  for  individual  benefit,  they  may  be 
held  liable  at  the  suit  of  one  specially  injured. 

Acts  of  the  legislature  in  excess  of  its  authority  are 
void,  and  will  be  so  declared  by  the  courts. 

§  514.  Liability  of  executive  and  administrative  of- 
ficers.— The  executive  power  of  the  United  States  is 
vested  in  the  president,  and  of  the  several  states  in  the 
governors.  In  the  exercise  of  their  respective  executive 
functions,  they  are  not  subject  to  the  processes  of 
courts,  upon  the  fundamental  principle  that  the  three  co- 
ordinate branches  of  the  government  must  be  independent 
of  each  other's  control.     So  long  as  an  act  is  within  the 


388  ELEMENTARY    LAW  [§615 

executive  power,  it  can  not  be  reviewed  by  the  courts, 
no  matter  whether  the  motive  be  mahcious  and  corrupt, 
and  whether  it  causes  special  injury  to  an  individual. 
The  only  remedy,  if  any  there  be,  would  be  by  way  of 
impeachment. 

Inferior  officers  charged  with  duties  to  carry  into 
effect  the  laws  are  usually  called  administrative  officers. 
The  protection  to  such  officers  acting  within  their  powers 
extends  only  to  their  errors.  If  such  an  officer  acts  cor- 
ruptly or  maliciously,  he  may  be  held  liable  to  civil  suit 
by  an  individual  injured. 

Any  executive  or  administrative  officer  may  be 
charged  with  the  performance  of  duties  that  are  merely 
ministerial.  As  to  such  duties,  the  afficer  is  subject  to 
the  control  of  the  courts  by  the  writ  of  mandamus,  or 
may  be  held  liable  for  damages  to  an  individual  speciall}' 
injured  through  his  improper  conduct. 

Whenever  an  officer  acts  outside  of  his  official  author- 
ity, he  to  that  extent  incurs  all  the  responsibility  of  an 
individual. 

§  615.  Liability  of  judicial  officers. — Judicial  acts 
necessarily  involve  the  exercise  of  judgment  or  discretion. 
For  such  acts  there  is  complete  and  absolute  immunity 
from  civil  suits.  So  long  as  they  act  within  their  juris- 
diction, judges  can  not  be  held  liable  civilly,  however  gross 
the  error  may  be,  or  however  corrupt  and  malicious  the 
motive  that  inspires  the  act.  This  is  now  the  well-settled 
law,  older  cases  affirming  a  contrary  doctrine  having  been 
overruled.  The  rule  is  not  everywhere  applied  with 
equal  force  to  courts  of  special  and  limited  jurisdictions, 
as  to  those  of  superior  and  general  jurisdiction. 

The  strong  reason  upon  which  the  rule  rests  is  in  pub- 
lic policy.  It  is  deemed  more  advantageous  to  the  public 
that   judges   shall   be   wholly    free    from    fear   of   private 


8  615]  administrative:  i,aw  389 

suit.  The  frailty  of  human  nature  is  such  that  an  honest 
litigant,  firmly  convinced  of  the  justice  of  his  cause,  is 
prone  upon  an  adverse  decision  to  believe  that  the  judge 
can  not  have  acted  with  pure  motives.  The  decision  must 
alv^ays  be  against  one  party  or  the  other,  and  if  it  were 
permitted  to  sue  a  judge  for  a  corrupt  decision, 
every  honest  judge  might  be  hampered  by  the  fear 
of  suits  brought  by  those  who  feel  aggrieved  at  his 
decisions.  Such  a  fear  would  to  a  greater  or  less  extent 
necessarily  impair  the  ejflficiency  of  the  judges.  It  is  there- 
fore deemed  best  to  clothe  the  judge  while  acting  within 
his  jurisdiction  with  complete  immunity  from  private  suits, 
and  to  leave  the  remedy  in  the  hands  of  the  state  only. 

By  the  phrase,  "having  jurisdiction,"  is  not  meant 
merely  the  having  jurisdiction  of  the  special  case  before 
the  court,  but  the  having  jurisdiction  of  that  class  of 
cases.  From  this  results  a  distinction  between  courts  of 
general  jurisdiction  and  those  of  limited  jurisdiction,  such 
as  justices  of  the  peace.  The  former  have  as  a  part  of 
their  jurisdiction  the  right  to  determine  whether  the 
special  case  before  them  comes  within  their  general  juris- 
diction, the  latter  have  the  Hmits  of  their  jurisdiction  fixed 
with  precision,  and  are  bound  to  confine  themselves  within 
such  limits.  In  the  former  case  the  judge  can  not  be 
held  liable  for  mere  error,  but  may  be  liable  if  he  acted 
maliciously  and  corruptly  and  without  there  being  a 
fair  judicial  question  that  he  had  not  jurisdiction;  in  the 
latter  case  the  judge  may  be  held  liable  for  his  error, 
as  well  as  for  malice  and  corruption. 

Judicial  officers  often  have  imposed  upon  them  duties 
which  are  merely  ministerial.  As  to  such  they  do  not 
act  judicially.  For  example,  after  a  bill  of  exceptions 
has  been  settled,  the  signing  of  it  by  the  judge  is  a  min- 
isterial  act   and   may   be   enforced   by   mandamus.      It   is 


390  ELEMENTARY    LAW  [§  616 

a  general  rule  that  for  failure  to  perform  ministerial  acts, 
judges   are  liable   the  same   as   other  ministerial   officers. 

§  616.  Mandamus. — Apart  from  the  ordinary  forms 
of  action  there  is  a  class  of  remedies  which  are  properly 
designated  as  extraordinary  remedies,  such  as  mandamus, 
quo  warranto,  prohibition,  habeas  corpus  and  certiorari. 
The  writ  of  mandamus  is  a  command  issuing  from  a 
court  of  competent  jurisdiction  in  the  name  of  the  state 
directed  to  some  corporation  or  officer,  or  inferior  court, 
requiring  the  performance  of  a  particular  duty  therein 
specified,  which  duty  results  from  the  official  station  of 
the  party  to  whom  the  writ  is  directed,  or  from  operation 
of  law.  The  writ  is  either  alternative  or  peremptory.  In 
the  first  instance  it  is  usual  to  issue  it  in  the  alternative 
form,  which  requires  the  person  to  whom  it  is  directed 
to  appear  and  show  cause  why  the  peremptory  writ  should 
not  issue.  If  he  shows  good  cause,  the  proceedings  are 
at  an  end.  If  he  fails  to  show  good  cause,  the  court 
awards  the  peremptory  writ  which  is  its  final  judgment 
in  the  case,  and  obedience  to  it  can  be  enforced  by  attach- 
ment. From  judgments  awarding  the  peremptory  writ 
there  is  usually  an  appeal  allowed  except  in  some  special 
cases,  as  where  it  issues  from  the  courts  of  last  resort. 

§  617.  Nature  of  the  action. — The  proceeding  is 
instituted  in  the  name  of  the  state  on  the  relation  of 
some  individual  who  has  an  interest  in  the  matter,  and 
who  is  known  as  the  relator.  The  writ  is  issued  only 
in  cases  where  there  is  a  clear  legal  right  and  the  party 
has  no  other  adequate  remedy.  Its  office  is  to  compel  the 
performance  of  a  ministerial  act,  but  not  to  control  the 
exercise  of  a  discretion.  It  will  issue  to  compel  a  judge 
to  decide  a  case,  but  it  will  not  direct  him  how  to  decide 
it.     Though  generally  used  to  enforce  the  performance 


§  619]  ADMINISTRATIVE    I.AW  391 

of  public  duties,  it  may  be  resorted  to  to  enforce  private 
rights  when  v^ithheld  by  officers.  The  following  are 
some  of  the  cases  in  which  this  writ  may  be  invoked: 
(1)  To  compel  the  board  of  commissioners  to  build  or 
repair  bridges;  (2)  to  compel  a  judge  to  sign  a  bill  of 
exceptions  or  to  make  a  record;  (3)  to  compel  a  justice 
of  the  peace  to  render  judgment  or  send  papers  to  a 
higher  court;  (4)  to  compel  the  mayor  and  city  council 
to  levy  a  tax,  or  make  estimates  for  public  improve- 
ments in  favor  of  contractors. 

§  618.  Quo  warranto. — Quo  warranto  is  the  name 
of  a  writ  which  at  common  law  might  be  issued  against 
persons  or  corporations  claiming  to  exercise  any  office  or 
franchise,  for  the  purpose  of  inquiring  into  their 
authority,  and  ousting  them  from  such  office  or  franchise 
in  case  no  authority  should  be  shown.  By  the  common 
practice  in  many,  if  not  all,  the  states,  the  redress  is 
.sought  by  means  of  an  information  in  the  nature  of  a 
quo  warranto.  Some  of  the  cases  in  which  the  remedy 
is  applied  are  (1)  where  any  person  shall  usurp  any  pub- 
h'c  office,  or  any  office  in  a  private  corporation;  (2) 
where  any  officer  has  done  or  suffered  an  act  which 
works  a  forfeiture  of  the  office;  (3)  where  an  associa- 
tion of  persons  shall  assume  to  act  as  a  corporation 
contrary  to  law;  (4)  where  for  nonuser  or  misuser  a 
corporation  has  forfeited  its  corporate  rights. 

§  619.  How  obtained. — The  information  is  based 
upon  the  affidavit  of  some  person,  who  states  specifically 
the  acts  or  omissions  which  show  a  case  of  justifying 
the  proceedings.  When  the  information  is  filed  and  the 
proper  notice  is  served,  the  defendant  appears  and  the 
case  is  conducted,   as  to  pleading  and  trial,   as   ordinary 


392  ELEMENTARY    I^AW  [§  620 

civil  cases,  except  where  the  statute  makes  provision  for 
a  different  method  of  proceeding. 

§  620.  Prohibition. — Prohibition  is  an  extraordi- 
nary writ  issuing  out  of  a  court  of  superior  jurisdiction 
directed  to  an  inferior  court  commanding  it  to  cease 
entertaining  jurisdiction  in  a  cause  or  proceeding  over 
which  it  has  no  control,  or  where  such  inferior  tribunal 
assumes  to  entertain  a  cause  over  which  it  has  jurisdic- 
tion, but  goes  beyond  its  legitimate  powers  and  trans- 
gresses the  bounds  prescribed  to  it  by  law.  It  is  a  writ 
which  should  only  be  issued  in  cases  of  extreme  neces- 
sity and  not  for  a  grievance  which  may  be  redressed  by 
means  of  the  ordinary  forms  of  law  or  in  equity.  The 
application  for  the  writ  is  addressed  to  the  sound  dis- 
cretion of  the  court  and  will  be  issued  only  where  the 
wrong  is  imminent  and  the  right  to  the  remedy  is  clear. 
Ordinarily,  no  appeal  lies  from  the  judgment  of  the 
court  refusing  to  grant  the  writ. 

§  621.  Habeas  corpus. — The  writ  of  habeas  corpus 
is  issued  by  any  court  of  competent  jurisdiction  or  judge 
thereof,  in  behalf  of  any  person  who  is  restrained  of 
his  liberty  under  any  pretext  whatever,  and  it  is  directed 
to  the  officer  or  person  who  has  custody  of  the  petitioner, 
commanding  him  to  produce  the  body  of  the  person  so 
restrained  forthwith  before  the  judge  or  court  by  whose 
order  the  writ  was  issued,  with  the  day  and  cause  of  his 
caption  and  detention.  It  is  a  writ  of  right,  and  the 
Constitution  of  the  United  States  provides  that  the  priv- 
ilege of  the  writ  shall  not  be  suspended,  unless  when  in 
cases  of  rebellion  or  invasion  the  public  safety  requires  it. 

§  622.     What  application  must  show — Return. — One 

who  applies  for  the  writ  must  show  in  his  application  by 


§  624]  ADMINISTRATIVE    LAW  393 

whom  the  person  is  restrained,  the  cause  or  pretense  of 
the  restraint,  and  in  what  the  illegahty  of  the  restraint 
consists.  Where  the  writ  is  served  upon  the  person  to 
whom  it  is  directed,  he  must  make  an  immediate  return, 
and  if  he  delays  or  refuses  he  may  be  attached  for  con- 
tempt. Where  he  produces  the  person  held  in  custody, 
he  must  make  and  file  a  return,  making  a  full  statement 
of  the  authority  for  the  detention  and  exhibit  a  copy  of 
the  warrant  under  which  he  restrains  the  person  in  his 
custody.  If  the  applicant  deems  the  return  insufficient, 
he  files  exceptions  thereto  and  the  judge  proceeds  to 
dispose  of  the  application  in  a  summary  manner.  After 
hearing  the  case  the  judge  remands  the  applicant  to  the 
officer  or  person  having  him  in  custody,  if  the  restraint 
is  lawful;  if  it  is  unlawful  he  discharges  the  applicant 
from  custody. 

§  623.  When  legality  of  restraint  will  not  be  in- 
quired into. — The  court  or  judge  will  never  inquire 
into  the  legality  of  the  restraint  where  it  is  in  pursuance 
of  the  process  of  a  United  States  court  having  jurisdic- 
tion, or  of  a  judgment  of  a  court  of  competent  jurisdic- 
tion, or  when  it  is  for  a  judgment  in  contempt  proceed- 
ings by  a  court  of  competent  jurisdiction,  or  when  it  is 
upon  a  warrant  of  arrest  of  a  court  of  superior  jurisdic- 
tion having  cognizance  of  the  crime  or  offense  charged 
against  the  person  restrained. 

§  624.  Certiorari. — The  writ  of  certiorari  is  a  writ 
which  issues  from  a  superior  or  appellate  court  to  an 
inferior  court  or  officer  exercising  judicial  functions,  or 
other  person,  requiring  such  court  or  officer  to  certify 
to  such  superior  court  a  full  and  complete  transcript  of 
the  records  and  proceedings  of  any  such  inferior  tribunal 
or  officer,  or  to  produce  any  paper  whenever  it  shall  be 


394  '  ELEMENTARY    LAW  [§  624 

necessary  for  the  proper  determination  of  any  cause  or 
proceedings  before  such  superior  or  appellate  court.  The 
purpose  of  the  writ  is  to  enable  the  superior  or  appellate 
court  to  inquire  into  the  jurisdiction  and  regularity  of 
the  proceedings.  It  differs  from  a  writ  of  error  in  the 
fact  that  it  issues  from  the  higher  court  to  the  lower 
, court,  whether  of  record  or  not,  and  at  any  stage  of 
the  proceedings,  as  well  before  as  after  judgment.  It 
also  issues  from  an  appellate  court  to  an  inferior  court, 
requiring  it  to  correct  or  amend  the  transcript  of  its 
proceedings,  whenever  it  is  made  to  appear  to  the 
appellate  court  that  there  has  been  a  mistake  or  omission 
as  to  any  material  particular  in  the  transcript  as  first 
certified. 


CHAPTER  XLIX 


INTERNATIONAL   LAW 


Sec.  Sec. 

625.  Definition.  627.     Neutrality. 

626.  Jurisdiction    over  foreign       628.     When  war  exists. 

ambassadors. 

§  625.  Definition. — International  law  is  that  body 
of  rules  accepted  by  the  nations  as  binding  upon  them  in 
their  relations  with  each  other.  This  is  not  law  in  the 
narrow  sense  in  which  we  have  defined  it  in  the  opening 
chapter  since  there  is  no  established  judicial  body  to 
enforce  its  rules  among  the  nations.  Frequently,  how- 
ever, matters  of  private  right  are  dependent  upon  the 
rules  of  international  law,  and  then  the  courts  apply 
these  rules  in  determining  the  rights  involved.  The 
horrors  of  war  on  land  and  sea  and  the  increasing  bulk 
and  complexity  of  international  relationship  resulting 
from  the  world-wide  growth  of  commerce  and  trade 
have  made  international  law  a  necessity.  There  are, 
however,  no  fixed  sanctions  or  penalties  to  punish  viola- 
tions or  to  enforce  obedience  to  this  law;  there  is  no 
tribunal  to  hear  and  determine  questions  touching  breaches 
of  the  law.  If  two  nations  have  a  controversy,  it  can  be 
settled  in  one  of  three  ways:  First,  by  negotiation  be- 
tween the  parties  concerned.  Second,  by  arbitration 
agreed  upon  by  the  parties.  Third,  by  war.  The 
Amphyctionic  Council  was  established  for  a  law  of 
nations  for  the  Greek  states,  but  it  failed.  Aristotle 
pleaded  for  the  humane  treatment  of  prisoners  of  war. 
As  late  as  the  Middle  Ages  the  usages  of  war  were  bar- 
barous.    The  church  exercised  her  influence  to  soften  its 

395 


396  ELEMENTARY    LAW  [§  626 

rigors.  Her  efforts  were  supplemented  by  the  laws  of 
chivalry,  and  later,  nations  by  treaties  bound  themselves 
to  certain  rules  for  the  conduct  of  war,  and  these  rules 
by  constant  usage  have  come  to  be  settled  law  among  all 
civilized  peoples.  The  scope  of  international  law  includes 
also  the  customs  and  usages  which  fix  the  rights  of 
neutrals,  the  navigation  of  the  high  seas,  the  extent  of 
the  jurisdiction  of  nations  over  the  seas  at  their  coast 
lines,  the  punishment  of  piracy,  treatment  of  ambassadors 
and  consuls,  passports,  in  fact  of  all  matters  growing 
out  of  and  related  to  the  intercourse  of  the  subjects  of 
nations   with   each   other. 

International  law  is  generally  divided  into  three  divi- 
sions dealing  with  peace,  neutrality  and  war  respectively. 

§  626.     Jurisdiction  over  foreign  ambassadors,  etc. — 

What  is  called  the  conventional  law  of  nations  is  com- 
posed of  those  stipulations  and  rules  which  have  been 
incorporated  in  treaties,  a  law  which  is  only  binding  upon 
the  parties  to  the  treaty.  To  promote  harmony  and  to 
facilitate  the  settlement  of  controversies  between  nations, 
and  the  subjects  of  different  nations,  it  is  customary  for 
nations  to  have  accredited  representatives  at  the  seat  of 
government  of  other  nations.  These  representatives, 
whether  called  ministers  or  ambas'sadors,  are  not  subject 
to  the  jurisdiction  of  the  courts  of  the  country  to  which 
they  are  sent,  and  the  same  rule  extends  to  the  members 
of  their  families  and  households.  Likewise  a  sovereign 
traveling  in  a  foreign  country  is  not  subject  to  its  laws. 
If  any  of  these  offend  against  the  laws  of  the  country 
where  they  may  be  residing  temporarily,  the  only  redress 
is  to  send  them  home  and  make  demand  upon  the  country 
they  represent  for  reparation.  This  rule  does  not  apply 
to   consuls    who   are   mere   commercial    agents.      Persons 


s 


628]  INT^RNATIONAI,    LAW  397 


belonging  to   an   army   or   navy   within    foreign   territory 
are  free  from  arrest. 

§  627.  Neutrality. — When  two  nations  are  at  war, 
other  nations  should  observe  the  duties  of  neutrality 
towards  the  belligerents.  To  enforce  these  duties  most 
nations  enact  neutrality  laws  for  the  purpose  of  punish- 
ing such  of  their  subjects  as  violate  their  duties.  A 
neutral  must  abstain   from  giving  aid  to  the  belligerents. 

§  628.  When  war  exists. — Each  belligerent  has  the 
right  to  seize  and  possess  itself  of  all  property  within  its 
borders  belonging  to  the  enemy  or  the  enemy's  subjects. 
Exceptions  are  made  in  favor  of  debts  owing  to  foreign 
creditors  and  to  ships  in  port  which  have  not  had  suffici- 
ent time  to  leave  after  hostilities  began.  Where  and  to 
what  extent  the  property  of  an  enemy  may  be  seized  and 
confiscated  is  in  this  country  a  political  question  which 
must  be  determined  by  congress. 


PART  X 


COURTS,  REMEDIES  AND  PROCEDURE 


CHAPTER  L 


COURTS  IN  GENERAL 


Sec. 

Sec. 

629. 

Courts  and  their  jurisdic- 
tion. 

638. 

630. 

Jurisdiction  defined. 

639. 

631. 

Federal  courts. 

632. 

The  senate  as  a  court. 

640. 

633. 

Judicial    circuits    and    dis- 

tricts. 

641. 

634. 

Judicial      power     of      the 

United  States. 

642. 

635. 

Exclusive    jurisdiction    of 

federal  courts. 

643. 

636. 

Concurrent  jurisdiction  of 
federal  and  state  courts. 

637. 

Jurisdiction     of     the 

644. 

Supreme    Court    of    the 

645. 

United  States. 

Jurisdiction  of  the  circuit 
courts  of  appeals. 

Jurisdiction  of  the  district 
courts. 

The  court  of  customs  ap- 
peals. 

Jurisdiction  of  the  court 
of  claims. 

United  States  commis- 
sioners. 

Courts  of  the  territories 
and  of  the  District  of 
Columbia. 

State  courts. 

Jurisdiction  of  state 
courts. 


§  629.  Courts  and  their  jurisdiction. — A  court  is 
a  tribunal  in  which  controversies  concerning  pubhc  and 
private  rights  and  wrongs  are  adjudicated  according  to 
the  regular  forms  of  law.  Courts  are  the  substitutes 
which  in  civilized  societies  take  the  place  of  private  war, 
or  the  right  of  each  individual  to  seek  the  redress  of  his 
wrongs  in  his  own  way.  Courts  are  the  creatures  of 
positive  law  and  their  jurisdiction  is  fixed  by  the  power 
which  creates  them.  The  Constitution  of  the  United 
States  and  the  laws  of  congress  fix  the  jurisdiction  of  the 

398 


§  631]  COURTS  IN  GKNERAL  399 

United  States  courts  and  the  constitutions  of  the  several 
states  and  the  statutes  of  their  respective  legislatures  fix 
the  jurisdiction  of  the  state  courts. 

§  630.  Jurisdiction  defined. — Jurisdiction  is  the 
right  of  a  court  to  hear  and  adjudicate  the  rights  of  the 
parties  in  a  case.  It  depends  on  the  character  of  the 
controversy  as  to  its  subject-matter,  or  on  the  character 
of  the  parties  to  the  controversy,  or  upon  the  place  where 
the  subject  of  the  controversy  arose.  Jurisdiction  is 
original  or  appellate.  A  court  of  original  jurisdiction  is 
one  in  which  suits  are  instituted  and  prosecuted  to  judg- 
ment. A  court  of  appellate  jurisdiction  is  one  in  which 
a  cause  once  tried  in  a  court  of  original  jurisdiction  may 
be  tried  again  on  its  merits,  or  in  which  the  record  of 
the  court  of  original  jurisdiction  may  be  examined  and 
reviewed  to  ascertain  if  the  adjudication  of  the  court 
below  was  correct.  Again,  jurisdiction  is  exclusive  or 
concurrent.  A  court  is  a  court  of  exclusive  original  juris- 
diction where  the  matter  in  controversy  is  such  that  it 
can  not  be  heard  in  any  other  court.  Courts  are  said  to 
be  of  concurrent  jurisdiction  where  certain  actions  may 
be  commenced  in  one  or  the  other,  as  the  parties  to  the 
suit  may  elect.  In  these  cases,  however,  the  court  which 
first  obtains  jurisdiction  generally  retains  it  until  the 
final  judgment,  to  the  exclusion  of  all  others. 

§  631.  Federal  courts. — The  federal  courts  consist 
of  the  Supreme  Court  of  the  United  States,  the  United 
States  Circuit  Court  of  Appeals,  the  United  States  District 
Courts,  the  Court  of  Claims,  the  Court  of  Customs 
Appeals,  the  Territorial  Courts,  and  the  Courts  of  the 
District  of  Columbia.  The  judges  of  these  courts  are 
appointed  by  the  President,  by  and  with  the  advice  and 
consent  of  the  senate  of  the  United  States,  and  with  the 


400  ELEMENTARY    LAW  [§  632 

exception  of  the  judges  of  the  Territorial  Courts,  they 
hold  office  during  good  behavior.  Judges  holding  during 
good  behavior,  who  are  seventy  years  old  and  have 
served  ten  years,  may  retire  from  office,  their  compensa- 
tion continuing  during  life.  Such  judges  can  only  be 
removed  from  office  when  they  are  impeached  by  the 
lower  house  of  congress  for  misconduct  in  office,  and 
found  guilty  by  the  senate  of  the  United  States.  No 
law  can  be  passed  which  will  diminish  the  compensation 
of  a  judge  during  his  term. 

§  632.  The  senate  as  a  court. — By  the  Constitution 
of  the  United  States  the  senate,  in  addition  to  its  func- 
tion as  a  branch  of  the  legislative  department  of  the 
government,  is  charged  with  the  duty  of  hearing  and  pro- 
nouncing judgment  in  all  cases  where  a  public  officer  is 
impeached  for  misconduct  in  office  by  the  lower  house  of 
congress.  When  the  senate  is  trying  the  President  of 
the  United  States  upon  impeachment,  the  chief  justice 
of  the  United  States  presides  over  its  deliberations. 

§  633.  Judicial  circuits  and  districts. — The  United 
States  is  now  divided  into  nine  circuits,  corresponding 
to  the  number  of  the  judges  of  the  Supreme  Court. 
Judicial  districts  are  created  from  time  to  time  by  con- 
gress as  the  exigencies  of  business  require.  Each  state 
has  at  least  one  district  and  some  are  subdivided  into 
two  or  more. 

§  634.  Judicial  pov^^er  of  the  United  States. — The  Con- 
stitution of  the  United  States  declares  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  in 
law  and  equity  arising  under  the  constitution,  the  laws  of 
the  United  States,  and  treaties  made  or  which  shall  be 
made  under  their  authority;  to  all  cases  affecting  ambas- 


§  636}  COURTS  IN  GENERAI,  401 

sadors,  other  public  ministers  and  consuls;  to  all  cases  of 
admiralty  and  maritime  jurisdiction;  to  controversies  to 
which  the  United  States  shall  be  a  party;  to  controversies 
between  two  or  more  states,  between  a  state  and  citizens 
of  another  state,  between  citizens  of  different  states, 
between  citizens  of  the  same  state  claiming  lands  under 
grants  of  different  states,  and  between  a  state  or  the 
citizens   thereof   and    foreign   states,    citizens   or   subjects. 

§  635.     Exclusive  jurisdiction  of  federal  courts. — The 

jurisdiction  vested  in  the  federal  courts  is  exclusive  of 
the  courts  of  the  several  states,  in  the  following  matters : 

(1)  All  crimes  and  offenses  cognizable  under  the 
authority   of   the   United    States. 

(2)  All  suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States. 

(3)  All  civil  causes  of  admiralty  and  maritime  juris- 
diction; saving  to  suitors  in  all  cases  the  right  of  a 
common-law  remedy  where  the  common  law  is  competent 
to  give  it. 

(4)  All  seizures  under  the  laws  of  the  United  States 
on  land  or  on  waters  not  within  admiralty  and  maritime 
jurisdiction. 

(5)  All  cases  arising  under  the  patent-right  or  copy- 
right laws  of  the  United  States. 

(6)  All  matters  and  proceedings  in  bankruptcy. 

(7)  All  controversies  of  a  civil  nature,  where  a  state 
is  a  party,  except  between  a  state  and  its  citizens,  or 
between  a  state  and  citizens  of  other  states,  or  aliens. 

§  636.  Concurrent  jurisdiction  of  federal  and  state 
courts. — Except  where  the  federal  courts  have  exclu- 
sive jurisdiction,  their  jurisdiction  is  concurrent  with  that 
of    the    state    courts.      The    two    systems    are    of    equal 

dignity,    and   where   jurisdiction    is    concurrent    the    court 
26 — Elem.  Law. 


402  EI.EMENTARY    I,AW  [§  637 

which  first  acquires  the  jurisdiction  over  the  parties  or 
subject-matter  is  entitled  to  retain  it  free  from  interfer- 
ence subject  to  the  right  of  a  citizen  of  another  state  to 
have  a  case  removed  from  the  state  court  to  a  federal, 
court  on  the  ground  of  diversity  of  citizenship, 

§  637.  Jurisdiction  of  the  Supreme  Court  of  the 
United  States. — In  some  cases  the  Supreme  Court  has 
original  jurisdiction,  that  is  to  say  the  suit  may  be  begun 
in  the  Supreme  Court.  This  may  be  done  in  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls, 
and  all  cases  in  which  a  state  is  a  party.  In  exercising 
this  original  jurisdiction,  the  Supreme  Court  causes  issues 
of  fact  in  common-law  cases  to  be  determined  by  a  jury. 
The  more  important  part  of  the  jurisdiction  of  the 
Supreme  Court  is  its  appellate  jurisdiction.  Before  the 
act  of  March  3,  1891,  organizing  the  circuit  courts  of 
appeals,  the  appellate  jurisdiction  of  the  Supreme  Court 
was  extensive.  By  that  act  its  jurisdiction  was  greatly 
changed,  being  enlarged  in  some  respects,  and  in  others 
curtailed.  Its  appellate  jurisdiction  at  present  exists  in 
cases  coming  to  it  in  the   following  ways : 

(1)  Directly  from  the  district  courts.  Appeals  or 
writs  of  error  may  be  taken  from  this  court  directly  to 
the  Supreme  Court,  in  cases  where  the  jurisdiction  of  the 
court  is  in  issue ;  in  prize  cases ;  in  cases  involving  the 
construction  or  application  of  the  federal  constitution,  or 
the  constitutionality  of  any  federal  law  or  the  validity  or 
construction  of  treaties. 

(2)  From  the  circuit  courts  of  appeals.  An  appeal 
or  writ  of  error  is  allowed  from  the  circuit  courts  of 
appeals  to  the  Supreme  Court  in  all  cases,  where  the  mat- 
ter in  controversy  exceeds  $1,000;  except  cases  in  which 
jurisdiction  depends  entirely  upon  citizenship  of  the  par- 
ties,   cases    arising    under    patent,    revenue,    and    criminal 


§  637]  COURTS  IN  GENERAI.  403 

laws  and  cases  in  admiralty.  As  to  the  excepted  cases 
the  decisions  of  the  circuit  court  of  appeals  are  final, 
unless  that  court  certifies  the  case  or  any  questions 
therein  to  the  Supreme  Court  for  its  decision.  Where 
questions  of  importance  are  involved,  the  Supreme  Court 
may  require  any  case  to  be  certified  to  it  by  the  circuit 
court  of  appeals. 

(3)  From  the  highest  court  of  a  state.  Final  judg- 
ments of  the  highest  courts  of  the  states  may  be  reviewed 
in  the  Supreme  Court  of  the  United  States  upon  writ  of 
error,  when  such  judgment  is  adverse  to  a  claim  or 
defense  based  upon  the  constitution  or  laws  of  the  United 
States.  If  the  decision  of  the  state  court  is  in  favor  of 
the  claim  made,  the  Supreme  Court  of  the  United  States 
has  no  jurisdiction  to  review  it. 

(4)  From  the  courts  of  the  District  of  Columbia  or 
the  territories.  The  judgments  of  the  court  of  appeals 
of  the  District  of  Columbia  may  be  reviewed  by  the 
Supreme  Court  of  the  United  States,  where  the  matter 
involves  the  question  of  jurisdiction,  prize  cases,  constitu- 
tions, treaties  and  statutes. 

The  judgments  of  the  supreme  courts  of  the  terri- 
tories may  be  reviewed  by  the  Supreme  Court  of  the 
United  States  where  the  federal  constitution,  statutes  or 
treaties  are  brought  in  question;  where  the  validity  of 
any  patent  or  copyright  is  in  question,  or  where  the  mat- 
ter in  dispute  exceeds  $5,000  in  value  and  would  have 
been  appealable  if  the  judgment  had  been  by  a  district 
court  of  the  United  States. 

Judgments  from  the  Supreme  Court  of  Porto  Rico  or 
from  U.  S.  District  Court  of  Porto  Rico  may  be  reviewed 
when  copyright,  treaty,  constitution  or  federal  statutes  are 
involved,  and  all  other  matters  involving  over  $5,000. 

Appeals  lie  from  the  Supreme  Court  of  Hawaii  for 
all   cases   appealable   from   state   supreme   courts   and   all 


404  Ei.e;mentary  i<aw  [§  638 

other  cases  over  $5,000.  Appeals  also  lie  from  the  district 
court  of  Alaska  where  case  involves  prize  matters,  con- 
stitution,  treaties  or   federal  statutes. 

Cases  from  the  Philippine  Supreme  Court  may  be 
reviewed  if  they  involve  federal  constitution,  treaties  or 
statutes,  or  sums  exceeding  $25,000. 

(5)  From  the  court  of  claims.  Appeals  are  allowed 
from  the  cpurt  of  claims  to  the  Supreme  Court  of  the 
United  States  upon  all  judgments.  There  is  a  jurisdic- 
tional limit  of  $3,000  in  some  cases. 

§  638.     Jurisdiction  of  the  circuit  courts  of  appeals. 

— The  circuit  courts  of  appeals  were  established  by  the 
act  of  March  3,  1891,  there  being  created  one  court  for 
each  of  the  nine  circuits.  Each  court  is  composed  of  three 
judges,  who  may  be  the  justice  of  the  Supreme  Court 
assigned  to  that  circuit,  the  circuit  judges  or  the  district 
judges  within  the  circuit. 

The  circuit  court  of  appeals  has  only  appellate  juris- 
diction, and  this  only  of  cases  coming  from  the  district 
courts  within  the  circuit,  and  of  cases  coming  from  terri- 
torial courts  that  may  be  assigned  to  the  circuit.  The 
entire  appellate  jurisdiction  is  divided  between  the 
Supreme  Court  and  the  circuit  court  of  appeals,  and  the 
jurisdiction  of  the  latter  embraces  all  the  appealable  cases 
except  those  cognizable  by  the  Supreme  Court  directly. 
There  is  no  jurisdictional  limit  on  account  of  the  amount 
involved.  The  cases  in  which  the  judgment  of  the  circuit 
court  of  appeals  is  final  have  been  shown  above. 

§  639.  Jurisdiction  of  the  district  courts. — The  dis- 
trict courts  have  original  jurisdiction  of  all  matters  com^ 
ing  within  the  general  jurisdiction  of  the  federal  courts, 
except  the  few  cases  over  which  the  Supreme  Court  of 
the  United   States  has   original  jurisdiction,   and   the   re- 


§  64J]  COURTS  IN  GENERAI^  405 

stricted  class  of  cases  coming  under  the  jurisdiction  of 
the  court  of  claims.  Prior  to  March  3,  1911,  this  general 
jurisdiction  was  divided  between  the  district  courts  and 
the  circuit  courts,  but  by  the  general  reorganization  act 
of  that  date,  the  circuit  courts  were  merged  with  the  dis- 
trict courts. 

§  640.  The  court  of  customs  appeals. — The  Payne- 
Aldrich  tariff  law  of  1909  created  the  court  of  customs 
appeals,  composed  of  a  presiding  judge  and  four  associ- 
ates, whose  jurisdiction  is  to  hear  appeals  from  the  Board 
of  General  Appraisers  on  questions  of  law  and  jurisdic- 
tion. 

§  641.  Jurisdiction  of  the  court  of  claims. — This 
court  was  established  for  the  purpose  of  regularly  investi- 
gating claims  against  the  government,  and  thereby  reliev- 
ing and  protecting  congress.  It  is  composed  of  five 
judges,  who  sit  at  Washington. 

The  court  is  required  to  hear  and  determine,  ( 1 )  all 
claims  founded  upon  the  Constitution  of  the  United  States, 
or  any  law  of  congress  except  for  pensions,  or  upon  any 
regulation  of  an  executive  department;  (2)  all  claims 
upon  any  contract,  express  or  implied,  with  the  govern- 
ment, or  for  damages  in  cases  not  sounding  in  tort,  in 
respect  of  which  claims  the  party  would  be  entitled  to 
redress  if  the  United  States  were  suable,  except  war 
claims;  (3)  all  counter  demands  of  the  government 
against  any  such  claimant;  (4)  petition  for  adjustment 
of  accounts  by  debtors  of  the  United  States;  (5)  certain 
questions  that  may  be  submitted  by  heads  of  departments, 
to  obtain  a  precedent  for  their  guidance.  It  also  has 
jurisdiction  in  a  number  of  minor  matters  not  of  general 
interest. 


406  ELEMENTARY    LAW  [§  642 

§  642.  United  States  commissioners. — As  auxiliaries 
to  the  courts,  United  States  commissioners  are  appointed 
by  the  judges  of  the  circuits,  and  act  as  examining 
magistrates  in  hearing  charges  for  violation  of  the  laws 
of  the  United  States,  and  where  a  probable  case  of  guilt 
is  made  out  they  admit  the  accused  to  bail  for  his  appear- 
ance before  the  court  having  jurisdiction  of  the  offense, 
or  if  the  offense  is  not  bailable  commit  the  accused  to 
prison.  These  commissioners  have  no  jurisdiction  to  pro- 
nounce final  judgment  in  any  case. 

§  643.  Courts  of  the  territories  and  of  the  District 
of  Columbia. — These  are  not  strictly  a  part  of  the  fed- 
eral judicial  system.  The  provisions  of  the  constitution 
relative  to  courts  of  the  United  States  do  not  refer  to 
courts  of  the  territories.  Upon  admission  of  a  territory 
to  the  Union  as  a  state,  it  is  the  state  courts  and  not  the 
federal  courts  that  are  the  successors  of  the  territorial 
courts.  The  jurisdiction  of  these  courts  is  a  matter  of 
special  interest  only  in  the  locality  of  the  courts. 

§  644.  State  courts. — The  organization  and  juris- 
diction of  the  state  courts  are  matters  within  the  exclusive 
province  of  the  several  states,  and  it  would  be  out  of 
place  here  to  attempt  to  consider  the  subject  in  detail. 
There  are,  however,  some  general  features  of  the  Amer- 
ican state  courts  which  are  common  to  nearly  all  of  them, 
and  which  should  be  noticed  in  outline  at  least.  Some 
of  these  courts  are  of  limited  and  inferior  jurisdiction, 
and  some  are  courts  of  general  and  superior  jurisdiction. 

§  645.  Jurisdiction  of  state  courts. — Courts  held  by 
justices  of  the  peace,  mayors  and  police  judges  are  courts 
of  inferior  and  limited  jurisdiction.  In  some  civil  mat- 
ters involving  small  interests,  in  petty  misdemeanors,  the 


§  645]  COURTS  IN  GENERAI,  407 

judgments  of  these  courts  are  final,  but  where  the  matters 
involved  are  more  important  appeals  lie  from  their  judg- 
ments to  courts  of  superior  jurisdiction.  These  courts 
also  have  power  to  issue  warrants  for  the  arrest  of 
offenders  of  the  higher  grades,  and  after  examination 
to  discharge,  admit  them  to  bail,  or  where  the  crime  is 
not  bailable  to  commit  them  to  jail  to  abide  the  finding 
of  the  grand  jury,  or  the  judgment  of  the  court  having 
final  jurisdiction.  In  some  of  the  states  the  courts  of 
superior  jurisdiction  are  divided  and  classified  as  chancery 
courts,  common-law  courts  (including  civil  and  criminal 
courts)  and  probate  courts,  each  having  jurisdiction  over 
such  subjects  as  are  implied  by  their  names.  These  courts 
have  original  and  final  jurisdiction  over  the  more  im- 
portant cases  subject  to  review  on  writ  of  error  by  the 
appellate  courts  of  the  states. 

In  most  of  the  states,  codes  have  been  adopted  by 
which  the  distinctions  in  the  forms  of  equity  and  com- 
mon-law pleadings  have  been  abolished  and  one  form  of 
action  is  substituted  under  which  all  rights  legal  and 
equitable  may  be  enforced.  In  a  few  of  the  states  the 
old  distinction  between  proceedings  in  equity  and  at  law 
are  still  maintained.  To  ascertain  the  scope  and  limits 
of  the  jurisdiction  of  these  state  courts,  recourse  must 
be  had  to  the  laws  creating  them. 


CHAPTER  LI 


EQUITY  COURTS 


Sec.  Sec. 

646.  Equity  jurisdiction.  obtained  jurisdiction 

647.  Injunction  —  Prohibitory  will    administer   full    re- 

and  mandatory.  lief. 

648.  General    scope     of    equity  650.     Suit  in  equity — How  com- 

jurisdiction.  menced — Pleadings. 

649.  A   court   of   equity  having  651.     Evidence  on  hearing. 

§  646.  Equity  jurisdiction. — The  jurisdiction  of  a 
court  of  equity  pertains  to  those  matters  in  which  the 
rights  of  the  parties  can  not  be  properly  ascertained  and 
determined  by  proceedings  at  law ;  and  it  is  a  settled  rule 
that  where  there  is  an  adequate  remedy  at  law  the  parties 
have  no  right  to  seek  redress  in  a  court  of  equity.  The 
object  of  an  action  at  law  is  to  recover  damages  and  a 
judgment  at  law  is  generally  enforced  by  a  seizure  of 
the  property  of  the  party  against  whom  the  judgment  is 
rendered.  A  decree  in  equity  requires  the  party  against 
whom  it  is  made  to  do  or  refrain  from  doing  some  act, 
and  obedience  to  it  is  enforced  by  the  court  through  pun- 
ishment for  contempt. 

Generally  it  may  be  said  that  courts  of  equity  are 
established  to  detect  latent  frauds  and  concealments  which 
the  process  of  the  law  is  not  adapted  to  reach ;  to  enforce 
the  execution  of  such  matters  of  trust  and  confidence  as 
are  binding  in  conscience,  though  not  cognizable  in  a 
court  of  law;  to  deliver  from  such  dangers  as  are  owing 
to  misfortune  or  oversight;  and  to  give  a  more  specific 
relief,  and  more  adapted  to  the  circumstances  of  the  case, 
than  can  always  be  obtained  by  the  generality  of  the 
rules  of  common  law. 

408 


§  648]  EQUITY   COURTS  409 

§  647.     Injunction  —  Prohibitory    and    mandatory. — 

The  aid  of  a  court  of  equity  is  sought  where  it  is  neces- 
sary to  prevent  the  doing  of  some  act  which  will  result 
in  such  injury  to  one's  property  or  rights  as  can  not  be 
adequately  compensated  in  damages,  as  the  destruction  of 
trees,  the  infringement  of  copyrights  or  trade-marks,  the 
■  creating  or  continuance  of  a  nuisance,  the  keeping  of 
ferocious  animals,  the  making  of  noises  at  unseasonable 
hours  near  one's  dwelling,  and  for  other  causes.  Where 
a  proper  case  is  made  the  court  grants  a  prohibitory  in- 
junction. In  a  case  of  emergency  the  injunction  will  be 
temporary  and  will  continue  in  force  until  the  hearing, 
when  if  the  complainant  makes  out  his  case  the  injunction 
will  be  made  perpetual.  Where  it  appears  that  it  is  neces- 
sary that  some  act  be  done  to  prevent  or  suppress  a 
wrong,  what  is  known  as  a  mandatory  injunction  will  be 
granted,  as  where  one  has  created  and  maintains  a 
nuisance  he  will  be  ordered  to  remove  or  abate  it. 

§  648.     General    scope    of   equity   jurisdiction. — The 

scope  of  equity  jurisdiction  is  extensive,  as  will  be  seen 
from  the  following  partial  enumeration  of  cases  for  its 
exercise.  If  the  execution  of  a  contract  has  been  pro- 
cured by  fraud,  equity  will  cancel  it.  If  by  mistake  or 
fraud  a  contract  has  been  so  framed  as  not  to  express 
the  intention  of  the  parties,  equity  will  correct  the  mistake, 
reform  and  enforce  the  contract  according  to  their  real 
intention.  A  contract  to  execute  a  conveyance  of  land 
will  be  specifically  enforced  in  equity  when  it  appears 
that  the  party  demanding  its  enforcement  is  not  himself 
in  default.  In  such  cases,  where  the  decree  directs  a  con- 
veyance and  the  party  refuses  to  obey  the  decree  the 
court  may  enforce  it  by  attachment,  or  by  appointing  some 
person  to  make  the  conveyance.  The  appointment  of 
receivers  to  manage,  control  and  dispose  of  property,  the 


410  ELEMENTARY    LAW  [§  649 

adjustment  of  accounts  between  partners  and  between 
other  persons  when  by  reason  of  the  number  and  nature 
of  the  claims  they  are  too  complicated  to  be  settled  at 
law;  the  setting  aside  of  conveyances  made  to  defraud 
creditors;  to  regulate  trusts  and  control  the  trustee  in  his 
dealings  with  the  trust  estate;  the  guardianship  and  con- 
trol of  infants  and  their  property;  applications  for  relief 
against  forfeitures;  to  compel  the  delivery  of  title  deeds; 
to  cancel  notes  or  other  forms  of  contract  which  are  not 
valid  or  have  been  discharged;  to  determine  who  of 
several  claimants  is  entitled  to  a  fund  in  court  or  in 
the  hands  of  a  third  party  who  is  in  doubt  as  to  who  may 
be  the  rightful  claimant;  proceedings  to  foreclose 
mortgages,  or  to  redeem  property  from  sales  at  fore- 
closure; these  are  all  matters  which  are  properly  cog- 
nizable in  courts  of  equity. 

§  649.  A  court  of  equity  having  obtained  jurisdic- 
tion will  administer  full  relief. — A\'here  a  court  of 
equity  obtains  jurisdiction  of  the  subject-matter  of  the 
controversy,  it  will  retain  it  until  all  the  rights  of  the 
parties  litigant  are  finally  determined.  And  where,  in  the 
course  of  the  proceedings,  it  becomes  necessary  to  pass 
upon  the  legal  as  well  as  the  equitable  rights  of  the  par- 
ties, the  court  will  proceed  to  a  final  adjudication  of  them 
all,  disposing  of  legal  matters  according  to  the  principles 
of  law,  and  disposing  of  questions  of  equity  according 
to  the  settled  rules  of  equity. 

§  650.     Suit  in  equity — How  commenced — Pleadings. 

— A  suit  in  equity  is  commenced  by  filing  a  bill  in  which 
the  plaintiff  sets  forth  in  detail,  without  repetition,  the 
facts  upon  which  he  bases  his  claim  for  equitable  relief. 
Upon  the  filing  of  the  bill  a  subpoena,  or  summons,  is 
issued,  which  is  served  as  in  actions  at  law.     If  the  de- 


§  651]  EQUITY    COURTS  411 

fendant  does  not  appear,  he  is  defaulted  and  a  decree  is 
taken  against  him  by  default.     He  usually  appears  by  a 
solicitor  when  he  desires  to  make  a  defense,  and  upon  a 
day   named,   called   a   rule   day,   he   is    required   to   plead, 
answer  or  demur   to  the  bill.      A   demurrer  to   a  bill   is 
based  upon  some  alleged  defect  in  its  form  or  substance. 
If  the  demurrer  is  sustained  the  plaintiff  can  amend  his 
bill;  if  it  is  overruled  the  defendant  can  plead  to  the  bill 
or  file  an  answer  thereto.     A  plea  to  a  bill  is  based  upon 
some  special  matter  of  defense  to  the  whole  bill  or  a  part 
of  it,  and  if  it  is  sustained  the  plaintiff  may  amend,   if 
he  can  do  so.     If  he  can  not  amend  so  as  to  avoid  the 
force  of  the  plea,  it  will  bar  his  recovery  upon  so  much 
of  the  bill  as  is  covered  by  the  plea.     If  the  plea  is  over- 
ruled  the   respondent   must   answer    or   a   decree   will   go 
against  him.     An  answer  in  equity,  like  an  answer  in  an 
action  at  law,   may  be   in  the    form   of   a   denial   of  the 
allegations  of  the  bill,  or  a  confession  of  the  substance  of 
them  and  the  setting  up  of  new  matter  which  constitutes 
a  defense  thereto.     If  the  defendant  is  not  content  with 
defeating  the  plaintiff,  but  claims  that  he  has  a  right  to 
some    affirmative    relief,    he    files    what    is    known    as    a 
cross-bill,    in   which   the    facts    upon   which   he    bases    his 
claim  for  relief  are  set  out  as  fully  as  is  required  in  the 
original  bill,   and  to  this  cross-bill  there  may  be   filed   a 
demurrer,  plea  or  answer.      Following  the  answer  is  the 
general  replication  which  puts  the  case  at  issue.    Before 
filing  a  replication,   an  answer  which   is   insufficient  may 
be  excepted  to,  and  if  the  exceptions  are  sustained  a  fur- 
ther answer  will  be  required. 

§  651.  Evidence  on  hearing. — The  case  being  at  is- 
sue the  parties  proceed  to  the  taking  of  the  evidence 
which  is  in  the  form  of  depositions  made  before  an 
examiner,   commissioner  or  some  other  officer  authorized 


412  EI^EMENTARY    LAW  [§  65l 

by  law.  Sometimes  to  expedite  the  hearing  of  a  cause 
the  witnesses  are  allowed  to  appear  in  court  and  testify 
as  in  actions  at  law.  Equity  cases  are  ordinarily  heard 
and  decided  by  the  judge  without  the  intervention  of  a 
jury.  Where  the  case  seems  to  require  it  the  court  may 
frame  an  issue  of  fact  to  be  tried  by  a  jury,  but  this 
is  an  interlocutory  proceeding  to  aid  the  court  in  mak- 
ing the  final  decree.  The  rules  as  to  the  competency  of 
witnesses  and  the  relevancy  and  admissibility  of  evidence 
are  the  same  as  in  actions  at  law.  The  decree  of  the 
court  is  final  as  to  the  subject-matter  and  the  parties 
before  the  court,  and  if  a  party  is  aggrieved  thereby  he 
has  his  remedy  by  appeal  to  a  higher  court,  or  by  filing 
another  bill  in  the  same  court  in  the  nature  of  a  bill  of 
review,  which  is  based  upon  alleged  errors  on  the  face  of 
the  record  or  the  discovery  of  new  and  material  evidence. 


CHAPTER  LII 

ADMIRALTY  LAW  AND  PROCEDURE 

Sec.  Sec. 

652.  Origin  and  history.  654.     Admiralty  procedure. 

653.  Admiralty  jurisdiction. 

§  652.  Origin  and  history. — Admiralty  law  and  pro- 
cedure, as  they  formerly  prevailed  in  England,  were  under 
the  superintendency  of  the  courts  of  common  law,  which 
had  power  to  keep  the  courts  of  admiralty  within  their 
jurisdiction,  and  to  restrain  and  prohibit  any  excess  of 
power.  The  proceedings  of  the  admiralty  courts  were 
according  to  the  method  of  the  civil  law,  and  were  for- 
merly held  before  the  lord  high  admiral  of  England  and 
such  tribunal  was  not  a  court  of  record.  By  parliament- 
ary enactments  the  jurisdiction  of  these  courts  has  been 
enlarged  and  their  dignity  elevated.  They  had  civil  and 
criminal  jurisdiction.  In  them  persons  were  tried  for 
crimes  committed  on  the  high  seas  or  on  the  coasts  of 
England  or  its  colonies,  but  as  they  proceeded  without  a 
jury,  and  the  accused  was  liable  to  be  tried  and  con- 
demned upon  the  opinion  of  a  single  judge,  parliament 
enacted,  in  the  reign  of  Henry  VHI,  that  these  offenses 
should  be  tried  by  the  admiralty  court  with  the  aid  of 
three  or  four  of  the  common-law  judges.  An  indictment 
was  necessary,  and  the  right  to  trial  by  jury  according 
to  the  law  of  the  land  was  secured  to  the  prisoner. 

The  system  as  it  prevailed  in  our  colonies  gave  the 
vice  admirals  a  much  larger  jurisdiction  than  the  courts 
of  admiralty  in  the  mother  country  exercised  at  that  time. 

§  653.   Admiralty  jurisdiction. — Article  3,  section  3,  of 

413 


414  e;le;me:ntary  law  [§  653 

the  Constitution  of  the  United  States,  confers  admiralty 
jurisdiction  upon  the  courts  of  the  United  States.  These 
courts  have  declared  as  the  settled  doctrine  under  the 
constitutional  grant  of  jurisdiction  that  it  means  the 
jurisdiction  which  had  been  and  was  exercised  in  ad- 
miralty in  this  country  prior  to  and  at  the  time  the  con- 
stitution was  adopted,  and  not  admiralty  jurisdiction  as 
it  was  understood  in  England  or  Continental  Europe. 
This  interpretation,  first  announced  by  Judge  Story  on 
the  circuit,  was  combatted  by  other  federal  judges,  but 
it  is  now  settled  law  that  the  jurisdiction  embraces  the 
water-borne  commerce  of  the  United  States  conducted 
on  its  internal  navigable  waters  as  well  as  on  the  high 
seas,  and  has  grown  to  include  all  maritime  services  and 
contracts,  and  all  injuries  when  inflicted  upon  such  waters. 
For  a  time  it  was  attempted  to  restrict  the  jurisdiction 
to  such  navigable  waters  only  as  where  affected  by  the 
ebb  and  flow  of  the  tide,  but  the  Supreme  Court  has  estab- 
lished the  doctrine  that  the  constitutional  grant  extends 
the  jurisdiction  not  only  to  such  waters,  but  over  all  the 
navigable  waters,  canals  and  rivers  of  the  nation  and 
wherever  ships  float  and  navigation  successfully  aids 
commerce,  whether  internal  or  external. 

Admiralty  jurisdiction  as  to  torts  is  confined  to  wrongs 
committed  on  the  water.  It  extends  to  matters  happening 
during  voyages  between  two  ports  in  the  same  state  and 
to  matters  happening  in  foreign  waters.  Jurisdiction  does 
not  depend  on  citizenship  of  the  parties,  and  where 
foreigners  appeal  to  our  admiralty  courts,  their  contro- 
versies will  be  adjudicated.  All  ships  are  prima  facie 
subject  to  admiralty  jurisdiction,  but  there  are  exceptions 
as  to  foreign  vessels  of  war  belonging  to  friendly  nations, 
and  vessels  engaged  in  the  service  of  a  city  government. 
Generally  stated,  the  subjects  of  maritime  jurisdiction  are 
maritime  contracts,  touching  rights  and  duties  appertain- 


§  654]  ADMIRALTY    LAW    AND    PROCEDURE)  415 

ing  to  commerce  and  navigation,  and  also  all  torts  or 
injuries  of  a  civil  nature  committed  on  navigable  waters. 
As  to  torts  the  test  of  jurisdiction  is  locality,  as  to  con- 
tracts it  depends  on  the  subject-matter.  Contracts  for 
building  vessels  and  for  labor  and  materials  in  their  con- 
struction are  not  maritime  contracts.  As  to  torts,  they 
must  be  torts  for  which  the  vessel  is  liable,  and  an  assault 
by  one  passenger  on  another  is  not  a  subject  of  admiralty 
jurisdiction.  It  is  otherwise  where  the  wrong  is  com- 
mitted by  the  officers  or  crew  of  the  vessel.  All  prize 
cases  and  controversies  about  the  distribution  of  prize- 
money  are  for  the  admiralty  courts.  The  jurisdiction  of 
the  United  States  courts  in  admiralty  cases  is  exclusive, 
and  it  is  lodged  in  the  district  courts.  If  the  district  court 
is  improperly  proceeding  with  a  cause  under  claim  of 
admiralty  jurisdiction,  the  Supreme  Court  may  issue  its 
writ  of  prohibition  to  restrain  it  from  going  further, 

§  654.  Admiralty  procedure. — The  forms  of  pro- 
cedure in  admiralty  are  prescribed  by  rules  formulated  by 
the  Supreme  Court  of  the  United  States.  The  pleadings 
are  simple  and  the  rules  as  to  allowing  amendments  are 
very  liberal.  Whenever  a  vessel  or  cargo  is  seized  it  is 
common  practice  to  release  it  if  the  owner,  who  is  called 
the  claimant,  makes  a  stipulation  with  security,  that  he 
will  pay  the  demand  of  the  plaintiff  or  libelant,  as  he  is 
-'.ailed,  if  there  is  an  adjudication  in  his  favor.  The  libel, 
which  is  the  first  pleading  filed,  must  show  a  case  for 
admiralty  jurisdiction,  and  if  it  is  filed  for  the  benefit 
of  all  who  are  interested  in  like  claims  against  the  vessel 
it  must  so  state.  One  peculiarity  about  the  practice  is 
that  recoupment  is  allowed  in  cases  of  tort  and  contract, 
even  when  it  goes  to  the  extent  of  compelling  contribu- 
tions among  joint  tort-feasors.  In  case  of  collision  the 
damages  may  be  apportioned  according  to  the  degree  of 


416  ELlCMENTARV    LAW  [§  654 

neelisfence  where  both  vessels  are  to  blame.  In  taking 
evidence,  the  rules  are  very  lax  and  this  results  from 
the  nature  of  the  case,  the  witnesses  being  seafaring  men, 
and  their  places  of  residence  and  movements  being  often 
sudden  and  uncertain.  Unless  the  statute  expressly  re- 
quires it,  there  is  no  jury  trial.  Where  there  is  a  vari- 
ance between  the  evidence  and  pleadings,  it  will  not  be 
fatal  unless  it  is  so  great  as  to  mislead  the  court.  The 
decision  is  against  the  vessel  and  all  persons  over  whom 
the  court  obtained  jurisdiction.  Such  decrees  are  good 
against  all  the  world,  so  far  as  the  vessel  or  cargo  is 
concerned,  and  can  not  be  questioned  even  in  the  courts 
of  a  country  whose  vessel  has  been  seized  and  condemned 
in  a  foreign  port  by  a  foreign  tribunal. 


CHAPTER  LIII 


CIVIL   PROCEDURE 


Sec.  Sec. 

655.  Scope  of  chapter.  669. 

656.  Civil    actions — C  o  u  r  t  s —       670. 

Their   officers — Juries. 

657.  Actions,   how   commenced       671. 

—Parties.  672. 

658.  The  process.  673. 

659.  How  served  and  returned. 

660.  Matters  of  defense. 

661.  Objection    to    jurisdiction,       674. 

how  and  when  made.  675. 

662.  Answers  or  pleas  in  abate-       676. 

ment. 

663.  Issues    of   fact   and   issues 

of  law.  677. 

664.  The  jury. 

665.  Trial.  678. 

666.  Evidence. 

667.  Functions     of    court     and       679. 

jury  as  to  evidence. 

668.  Things  which  need  not  be       680. 

proved,     or     of     which       681. 
courts    take    judicial 
notice.  682. 


Written  and  oral  evidenoe. 

Attendance  of  witnesses, 
how  procured. 

Competency   of  witnesses. 

Hearsay  evidence. 

Exceptions  to  the  rule  ex- 
cluding hearsay  evi- 
dence. 

Examination  of  witnesses. 

Burden  of  proof. 

Arguments  of  counsel  and 
instructions  of  the 
court 

Deliberations  of  jury  and 
verdict. 

Motion  to  set  verdict  aside 
and  for  a  new  trial. 

Motion  in  arrest  of  judg- 
ment. 

Forms  of  judgments. 

Appeals  and  writs  of 
error. 

Execution. 


§  655.  Scope  of  chapter. — We  will  now  consider 
the  order  in  which  civil  actions  are  commenced  and  pros- 
ecuted to  final  judgment.  Owing  to  the  diversity  of 
legislation  :n  the  code  states  and  the  practice  that  has 
grown  up  in  these  states  under  the  rulings  of  the  courts, 
it  is  manifestly  impossible  in  our  limited  space  to  give 
the  order  and  rules  of  proceeding  and  practice  in  all  the 
states,  and  we  shall  content  ourselves  witli  some  general 
statements  which  will  apply  to  most  if  not  all  of  them, 
27 — Elem.  Law.  417 


418  ELEMEINTARY    LAW  [§  656 

§  656.  Civil  actions  —  Courts  —  Their  officers — Ju- 
ries.— An  action  is  a  proceeding  in  a  court  by  a  plain- 
tiff against  a  defendant,  to  establish  a  right  or  to  obtain 
a  remedy.  In  every  court  there  must  be  a  judge,  wbose 
duty  it  is  to  preside  and  direct  the  proceedings  of  the 
court  and  to  decide  such  matters  of  law  or  fact  as  may 
be  submitted  to  him ;  a  clerk,  whose  duty  it  is  to  keep  a 
faithful  minute  and  record  of  all  the  proceedings  of  tho 
court  and  to  perform  such  other  duties  as  the  law  and 
rules  of  practice  may  require ;  a  sheriff  or  bailiff,  who  is 
to  maintain  order  in  the  court,  to  obey  the  orders  of 
the  judge  and  to  serve  the  process  of  the  court.  It  is 
the  duty  of  the  jury,  under  the  directions  of  the  court 
as  to  matters  of  law,  to  decide  the  questions  of  fact  sub- 
mitted to  them,  and  to  put  their  decision  in  the  form 
of  a  verdict,  to  which  they  unanimously  agree. 

§  657.  Actions,  how  commenced — Parties. — In  every 
action  there  must  be  two  adversary  parties  and  a  real 
controversy.  Courts  are  not  organized  for  the  purpose 
of  deciding  abstract  questions  of  law  unless  it  is  neces- 
sary to  establish  the  substantial  rights  of  the  parties  to 
the  action.  To  begin  and  prosecute  a  fictitious  proceeding 
in  a  court  is  a  contempt  of  court.  The  plaintiff  begins 
his  suit  by  filing  in  the  proper  court  a  statement  in  writ- 
ing showing  the  facts  upon  which  he  bases  his  claim  for 
redress.  This  is  called  a  declaration,  complaint,  petition 
or  bill. 

§  658.  The  process. — The  clerk  issues  a  writ  bear- 
ing the  seal  of  the  court  and  attested  by  the  clerk,  which 
is  delivered  to  the  sheriff  for  service  upon  the  defendant 
who  is  named  in  the  writ.  The  writ  or  summons  requires 
the  defendant  to  appear  and  plead  to  the  action  by  a  day 
specified,  and  must  be  served  as   required  by  law,   either 


§  660J  CIVIL  procedure;  419 

by  reading  it  to  the  defendant  in  person,  by  leaving  a 
copy  of  it  at  his  usual  place  of  residence,  or  by  leaving 
a  copy  at  some  other  place  designated  by  law.  Sometimes 
the  form  of  the  action  is  such  that  the  writ  issued  re- 
quires tlic  sheriff  to  seize  the  person  of  the  defendant  or 
goods  in  his  possession.  And  in  cases  of  foreign  attach- 
ment the  goods  of  a  defendant  may  be  seized  in  a  state 
where  he  is  not  a  resident  to  satisfy  plaintiff's  claim.  In 
actions  wJiere  the  defendant  can  not  be  served  with 
process,  and  the  court  has  jurisdiction  of  the  subject- 
matter  of  the  controversy,  constructive  notice  is  given  by 
publication  in  a  newspaper,  or  service  of  summons  may 
])e  made  upon  defendant  in  another  state,  wdien  tlie  statute 
allows  it.  But  in  cases  where  constructive  notice  alone 
is  given,  the  judgment  of  the  court  is  binding  upon  the 
defendant  only  so  far  as  it  relates  to  the  property  wathin 
the  jurisdiction  of  the  court, 

§  659.  How  served  and  returned. — If  the  sheriff 
finds  the  defendant,  it  is  his  duty  to  serve  the  process, 
to  indorse  upon  it  the  time  and  manner  of  service,  and 
to  return  and  file  it  with  the  clerk  who  issued  it.  The 
defendant  may  not  wish  to  contest  the  action,  in  which 
case  he  fails  to  appear  in  court,  and  judgment  is  taken 
against  him  by  default.  If  he  wishes  to  defend  he  must 
enter  his  appearance  and  file  his  defense  according  to  the 
rules  of  practice  of  the  court  where  the  action  is  pending. 

§  660.  Matters  of  defense. — If  a  defendant  denies 
the  right  of  the  court  to  hear  the  controversy,  he  objects 
to  the  jurisdiction.  If  the  court  has  jurisdiction  and  the 
suit  is  properly  brought,  the  defendant  may  be  willing  to 
admit  that  the  facts  stated  in  plaintiff's  complaint  are 
true,  but  may  insist  that  they  are  not  sufficient  in  law 
to  entitle  the   plaintiff   to   the   redress   he   seeks;   in  such 


420  ELEMENTARY    LAW  [§  661 

case  he  files  a  pleading  called  a  demurrer,  and  if  the 
court  sustains  the  position  of  the  defendant,  judgment 
is  given  against  the  plaintiff,  who  has  the  option  to  amend 
his  faulty  pleading,  or  to  appeal  from  the  judgment.  In 
the  same  way  a  demurrer  may  be  interposed  to  a  defective 
answer  or  reply,  if  it  does  not  in  the  opinion  of  plaintiff 
state  facts  sufficient  to  constitute  a  good  defense  or  reply. 
A  demurrer  raises  what  is  called  an  issue  of  law.  A 
pleading  which  denies  the  allegations  of  another  pleading 
raises  an  issue  of  fact.  An  answer  which  admits  the 
sufficiency  of  the  complaint,  but  alleges  new  matter  which 
makes  a  good  defense  to  plaintiff's  claim,  is  called  an 
answer   in   confession   and    avoidance. 

§  661.  Objection  to  jurisdiction,  how  and  when 
made. — A  defendant  who  wishes  to  object  to  the  juris- 
diction of  the  court  over  the  parties  to^  the  suit  must 
enter  a  special  appearance  for  that  purpose.  If  he  enters 
his  appearance  generally,  he  waives  his  right  to  make 
such  a  plea.  But  if  the  court  has  no  jurisdiction  over  the 
subject-matter,  all  proceedings  in  regard  to  it  are  void. 
If  a  defendant  is  sued  in  one  jurisdiction,  when  he  has 
a  right  to  demand  that  he  should  be  sued  in  another,  he 
can  give  the  court  jurisdiction  by  appearing  to  the  action 
or  by  failing  to  plead  to  the  jurisdiction.  If  one  court 
should  proceed  to  try  an  action  in  relation  to  a  matter, 
the  jurisdiction  of  which  by  law  belongs  exclusively  to 
another  court,  all  its  proceedings  would  be  void.  If  the 
facts  showing  want  of  jurisdiction  appear  upon  the 
face  of  plaintiff's  complaint,  the  court  will  dismiss  the 
action  upon  the  motion  of  the  defendant.  If  the  facts 
do  not  so  appear  they  must  be  brought  to  the  attention 
of  the  court  by  a  special  plea  to  the  jurisdiction. 

§  662.     Answers  or  pleas  in  abatement. — A  defend- 


§  664]  civil.  PROCEDURE  421 

ant  may  file  an  answer  in  abatement,  and  this  may  be 
based  on  defects  in  the  process,  defects  in  the  service  of 
process,  incapacity  of  plaintiff  to  sue,  incapacity  of  the 
defendant  to  be  sued,  misdescription  of  the  parties,  plain- 
tiff or  defendant,  misjoinder  of  parties,  nonjoinder  of 
parties,  another  action  pending  for  the  same  cause 
between  the  same  parties.  Some  of  these  defects  may  be 
brought  to  the  attention  of  the  court  by  demurrer  or 
motion,  according  to  the  practice  of  the  court  where  the 
action  is  pending.  It  will  be  seen  that  none  of  the 
defects  above  named  go  to  the  merits  of  the  controversy, 
and  most  of  them  may  be  cured  by  amendment.  An 
answer  in  abatement  is  a  dilatory  answer,  and  ordinarily 
it  must  be  filed  and  disposed  of  before  the  case  is  tried 
on  its  merits. 

§  663.  Issues  of  fact  and  issues  of  law. — When  the 
parties  are  at  issue  upon  a  question  of  law  alone,  the 
judge  decides  it.  An  issue  of  fact  is  submitted  to  a  jury, 
unless  the  parties  waive  a  jury  and  consent  to  a  trial  by 
the  court. 

§  664.  The  jury. — A  jury  is  a  body  usually  of  twelve 
men  summoned  from  the  residents  or  citizens  of  the 
county  where  the  case  is  tried  who  are  impaneled  and 
sworn  to  try  the  issues  in  the  case  and  to  render  a  true 
verdict  according  to  the  law  and  the  evidence.  What  is 
called  the  regular  venire  is  a  body  of  men  summoned  to 
serve  as  jurors  generally  during  all  or  a  portion  of  the 
term  of  court.  A  special  venire  is  a  body  of  men  selected 
and  summoned  to  try  a  particular  case.  When  a  regular 
or  special  venire  is  exhausted  by  challenges  or  other  cause, 
without  securing  the  requisite  number,  a  new  venire  is 
issued  or  the  number  is  made  up  from  bystanders  who 
have    the     requisite     qualifications     to    serve    as    jurors. 


422  ELEMENTARY    LAW  [§  665 

Before  the  jurors  are  sworn  to  try  the  case,  either  party 
may  object  to  them  as  a  body  or  to  the  jurors  individually. 
The  first  objection  may  be  based  upon  an  irregularity  or 
defect  in  the  manner  of  making  up  or  serving  the  venire, 
or  the  misconduct  or  partiality  of  the  sheriff  by  whom  it 
is  served.  The  second  objection  is  based  upon  the  legal 
disqualification  of  the  jurors  objected  to,  or  on  account 
of  their  bias  in  favor  of  one  of  the  parties.  The  first 
objection  is  called  a  challenge  to  the  array,  the  second  is 
called  a  challenge  to  the  polls.  There  are  two  kinds  of 
challenges  to  the  polls.  Where  the  ground  of  a  challenge 
is  the  bias  of  the  juror  it  is  a  challenge  for  cause.  Where 
the  challenge  is  without  cause  it  is  a  peremptory  challenge. 
The  right  to  use  the  peremptory  challenge  in  civil  cases 
is  limited  to  a  small  number,  usually  two  or  three.  The 
right  to  the  challenge  for  cause  is  without  limit  as  to 
number,  it  being  essential  that  all  of  the  twelve  jurors 
should  be  able  to  hear  and  decide  the  case  without 
partiality  or  bias. 

§  665.  Trial. — The  jury  being  impaneled  and  sworn 
to  try  the  case,  the  counsel  of  the  parties  read  the  plead- 
ings or  state  the  substance  of  them  to  the  jury,  together 
with  a  summary  of  the  evidence  which  they  expect  to 
produce  in  support  of  the  issues. 

§  666.  Evidence. — Evidence  includes  all  the  means 
by  which  an  alleged  matter  of  fact,  the  truth  of  which 
is  submitted  to  investigation,  is  established  or  disproved. 
Proof  is  the  effect  of  evidence.  Evidence  consists  of 
statements  made  by  witnesses  under  oath  in  relation  to 
matters  of  fact  under  inquiry,  and  of  documents  produced 
for  the  inspection  of  the  jury  and  court.  There  are  three 
degrees  or  kinds  of  evidence,  namely,  conclusive,  prima 
facie,  and  evidence  tending  to  prove.     Conclusive  evidence 


§  666]  civiiv  PROCEDURE  423 

is  such  as  when  produced  excludes  all  evidence  to  the 
contrary.  Prima  facie  evidence  is  such  as  in  the  absence 
of  evidence  to  the  contrary  is  sufficient  to  establish  the 
existence  of  a  fact.  Evidence  tending  to  prove  a  fact 
is  any  competent  evidence  which  tends  to  establish  the 
existence  of  a  fact  in  issue.  Competent  evidence  is  that 
which  the  very  nature  of  the  thing  to  be  proved  requires, 
and  is  the  best  evidence  that  the  nature  of  the  case  admit* 
of.  If  the  question  is  as  to  the  contents  of  a  written  instru- 
ment, the  instrument  itself  is  the  best  evidence.  If  the 
instrument  be  lost  or  destroyed  or  beyond  the  jurisdiction 
of  the  court,  oral  testimony  as  to  its  contents  may  be 
given,  and  in  such  case  it  is  competent,  being  the  best 
that  the  nature  of  the  case  admits  of.  Sufficient  or  satis- 
factory evidence  is  such  as  will  reasonably  satisfy  an  un- 
prejudiced mind  of  the  existence  of  a  fact.  Corroborative 
evidence  is  additional  evidence  of  the  same  character  to 
support  the  same  point  as  other  evidence  already  given, 
and  it  may  be  a  repetition  of  evidence  given  as  to  a  fact, 
or  evidence  of  another  fact  which  makes  the  existence  of 
the  fact  already  testified  to  more  probable.  Cumulative 
evidence  means  more  of  the  same  kind  of  evidence  and 
to  the  same  point,  and  is  a  species  of  corroborative  evi- 
dence. Relevant  evidence  is  such  as  directly  touches  upon 
the  issue  the  parties  have  made  in  their  pleadings  so  as 
to  assist  in  getting  at  the  truth.  Evidence  is  sometimes 
designated  as  "admissible,"  "proper,"  or  "material,"  but 
the  terms  competent  and  relevant  comprehend  them  all. 
Direct  evidence  is  such  as  is  given  by  persons  who  testify 
from  personal  knowledge  of  the  facts.  Indirect  or  cir- 
cumstantial evidence  consists  of  a  fact  or  group  of  facts 
testified  to  by  persons  having  a  personal  knowledge  of 
them,  from  which  the  existence  of  another  fact  or  facts 
may  be  inferred. 


424  Eleme;ntary  law  [§  667 

§  667.     Functions  of  court  and  jury  as  to  evidence. — 

Questions  as  to  the  competency  and  relevancy  of  evidence 
are  decided  by  the  court.  The  weight  of  the  evidence, 
or  what  it  proves,  is  a  question  for  the  jury. 

§  668.  Things  which  need  not  be  proved,  or  of 
which  courts  take  judicial  notice. — There  is  a  class  of 
facts  which  need  not  be  proved,  and  which  are  presumed 
to  be  known  to  the  judge  and  jury.  They  are  facts  of 
which  courts  take  judicial  notice,  as  of  the  existence  of 
nations,  of  national  flags  and  seals,  of  the  titles  of 
sovereigns  or  rulers,  of  public  acts,  decrees  and  judg- 
ments certified  under  the  seal  of  foreign  nations,  of  the 
public  laws  of  the  state  in  which  the  court  is  held,  of  the 
usages  of  commercial  business,  of  the  genuineness  of  a 
notary's  seal,  of  the  geographical  boundaries  of  states  and 
nations,  of  the  distances  of  cities  and  towns  from  one 
another.  In  short,  the  court  will  take  judicial  notice  of 
what  ought  to  be  generally  known  within  the  limits  of 
their  jurisdiction,  and  if  the  memory  of  the  judge  is  at 
fault,  he  may  resort  to  books,  maps  or  other  documents 
to  refresh  his  memory. 

§  669.  Written  and  oral  evidence. — Evidence  is  writ- 
ten or  oral.  Written  evidence  consists  of  all  written 
agreements,  instruments,  records,  public  or  private,  the 
production  and  contents  of  which  tend  to  establish  or 
disprove  any  material  fact  in  issue.  Oral  evidence  con- 
sists of  the  viva  voce  statements  made  by  witnesses  in 
open  court  under  oath.  Oral  evidence  is  allowed  where 
it  relates  to  facts  observed  by  the  witness,  or  in  case  of 
experts  to  matters  of  opinion.  A  deposition  is  the  oral 
evidence  of  a  witness  who  can  not  be  produced  at  the 
trial,  which  has  been  reduced  to  writing  by  some  com- 
petent  person,   in  the   presence   of   the   parties.      It   is   in 


§  671]  CIVIL  PROCEDURE  425 

the  form  of  questions  and  answers.  When  properly  taken 
upon  due  notice,  and  filed  in  court,  it  may  be  read  to  the 
jury. 

§  670.     Attendance    of    witnesses,    how    procured. — 

The  attendance  of  witnesses  within  the  jurisdiction  of 
the  court  is  procured  by  the  issuing  and  service  upon  the 
witness  of  a  writ  which  is  called  a  subpoena.  This  re- 
quires him  to  appear  in  court  upon  a  day  named  and  to 
remain  in  attendance  until  discharged  by  the  court.  The 
subpoena  is  usually  served  by  the  sheriff,  by  reading  it 
to  the  witness  in  person  or  by  leaving  a  copy  for  him 
at  his  residence.  When  served  the  officer  returns  the 
subpoena  to  the  clerk  with  his  indorsement  thereon  show- 
ing the  time  and  manner  of  service.  If,  in  addition  to 
the  testimony  of  the  witness,  the  party  calling  him  wishes 
him  to  produce  at  the  trial  any  document  in  his  posses- 
sion, there  is  a  clause  inserted  in  the  subpoena  requiring 
him  to  bring  with  him  the  document  named,  giving  a 
particular  description  of  it,  so  that  the  witness  may  know 
precisely  what  is  wanted.  Such  a  subpoena  is  called  a 
subpoena  duces  tecum.  If  a  witness  refuses  to  obey  a 
subpoena,  an  attachment  will  be  issued  against  him,  and 
in  a  proper  case  he  will  be  punished  for  a  contempt  of 
court. 

§  671.  Competency  of  witnesses. — Before  the  enact- 
ment of  recent  statutes  on  the  subject,  many  persons  who 
are  now  competent  witnesses  were  held  to  be  incompetent, 
on  account  of  their  interest  in  the  result  of  the  suit,  their 
relation  to  the  parties  and  upon  other  grounds  not  neces- 
sary to  be  enumerated.  By  the  law  of  most  if  not  all 
of  the  states,  these  objections  which  formerly  went  to 
the  competency  of  the  witness  now  go  to  his  credibility. 
There  still  remains  a  rule  which  is  almost  universal  which 


426  ELEMENTARY    EAW  [§  672 

excludes  from  the  consideration  of  the  court  and  jury 
what  are  called  privileged  communications.  These  are 
communications  between  priest  and  penitent,  husband  and 
wife,  physician  and  patient,  attorney  and  client.  Secrets 
of  state  are  also  privileged,  and  a  witness  can  not  be 
compelled  to  testify  to  any  fact  which  would  tend  to 
expose  him  to  prosecution   for  crime. 

§  672.  Hearsay  evidence. — Hearsay  evidence  is  what 
a  witness  says  he  heard  somebody  else  say,  and  such 
evidence  is  generally  excluded.  The  reasons  for  the  rule 
are  obvious.  To  allow  such  evidence  would  enable  the 
party  producing  it  to  get  before  the  jury  the  statements 
of  persons  who  were  not  testifying  under  the  sanction 
of  an  oath,  and  were  not  subjected  to  cross-examination. 
There  is  the  danger  also  that  the  witness  testifying  to 
the  statement  may  not  have  heard  all  of  it,  or  may  have 
remembered  it  imperfectly.  It  is  a  weak  sort  of  evidence 
at  best,  and  to  admit  it  would  be  to  furnish  strong  tempta- 
tions to  impose  upon  the  court  and  jury  false  and 
fabricated   evidence. 

§  673.  Exceptions  to  the  rule  excluding  hearsay- 
evidence. — There  are,  however,  some  declarations  that 
in  strictness  might  be  called  hearsay,  which  are  admissible 
in  evidence: 

(1)  Where  the  fact  that  the  declaration  was  made 
and  not  its  truth  or  falsity  is  the  point  in  question. 

(2)  Expressions  of  bodily  or  mental  feelings  where 
the  existence  of  such   feelings   is  the   subject  of   inquiry. 

(3)  In  cases  of  disputed  pedigree,  the  declarations  of 
the  members  of  the  family  asserting  kinship,  entries  in 
the  family  bible,  inscriptions  on  mural  tablets  or  tomb- 
stones are  admissible. 

(4)  Declarations  accompanying  an  act  and  which  tend 


§  675]  CIVIL  PROCEDURE  427 

to  show  the  intent,   or  any  statement  made  at  the  time 
and  forming  a  real  part  of  the  transaction. 

(5)  Dying  declarations  of  the  victim  of  a  homicide, 
made  under  the  apprehension  of  death,  concerning  the 
identity  of  the  slayer  and  the  circumstances  of  the  killing. 

(6)  Where  a  statement  is  made  by  a  witness  out  of 
court  inconsistent  with  his  testimony  in  court  it  can  be 
proved  to  impeach  his  veracity. 

(7)  Where  the  statement  is  made  by  a  party  to  the 
suit,  or  by  his  authorized  agent,  in  relation  to  the  matter 
in  controversy,  and  which  is  against  the  interest  of  the 
party. 

§  674.  Examination  of  witnesses. — The  order  of  the 
examination  of  witnesses  is  as  follows :  First,  the  direct 
examination  by  the  counsel  of  the  party  calling  the  wit- 
ness; second,  the  cross-examination  by  the  counsel  of  the 
opposite  party;  and,  third,  the  redirect  examination  by 
the  counsel  of  the  party  calling  the  witness.  As  a  general 
rule  leading  questions,  or  questions  which  suggest  the  de- 
sired answer,  can  not  be  asked  of  a  party's  own  witness. 
A  witness  who  surprises  the  party  who  calls  him  by  giv- 
ing adverse  evidence  may  be  asked  leading  questions  on 
his  direct  examination,  and  the  same  privilege  is  allowed 
to  a  party  who  is  compelled  to  call  a  witness  who  is 
hostile  to  him.  On  cross-examination  leading  questions 
are  allowed.  A  witness  may  refresh  his  memory  while 
testifying  by  referring  to  a  written  memorandum,  but  if 
he  does  so  the  opposite  party  has  a  right  to  inspect  the 
memorandum  and  cross-examine  the  witness  in  relation 
thereto. 

§  675.  Burden  of  proof. — The  burden  of  proof  in 
civil  cases  rests  upon  the  party  making  an  allegation, 
and  the  plaintiff  must  establish  his  right  to  a  verdict  by 


428  ELEMENTARY    LAW  [§  676 

producing  a  preponderance  of  the  evidence.  Where  the 
defendant  makes  an  affirmative  defense,  the  burden  of 
proving  it  rests  upon  him.  This  burden  is  sometimes 
shifted  from  one  party  to  the  other. 

§  676.  Arguments  of  counsel  and  instructions  of  the 
court. — When  the  evidence  is  closed  counsel  address 
the  jury  in  the  order  in  which  the  evidence  was  produced, 
the  party  upon  whom  the  burden  of  proof  rests  having 
the  right  to  open  and  close  the  argument.  After  the 
arguments  are  made,  the  judge  instructs  the  jury  in  the 
rules  of  law  which  are  applicable  to  the  facts  proved. 
Counsel  have  a  right  to  request  the  court  to  give  specific 
instructions,  and  if  they  state  the  law  and  are  applicable 
to  the  case,  it  is  the  duty  of  the  judge  to  give  them.  A 
refusal  to  give  them,  or  the  giving  of  erroneous  instruc- 
tions, furnish  grounds  for  a  new  trial  to  the  party  injured 
by  them. 

§  677.  Deliberations  of  jury  and  verdict. — After  the 
instructions  are  given  the  jury  are  conducted  to  a  room 
where  they  are  kept  in  charge  of  an  officer  of  the  court 
until  they  have  unanimously  agreed  upon  a  verdict.  A 
verdict  may  be  general  or  special.  A  general  verdict  is 
expressed  in  general  terms,  and  finds  the  issue  for  the 
plaintiff  or  defendant.  A  special  verdict  is  where  the 
jury,  by  request  of  the  parties  or  of  their  own  motion, 
write  out  a  statement  of  the  facts  found  by  them  in 
detail,  leaving  it  for  the  court  to  decide  upon  the  facts 
so  found,  whether  the  judgment  should  be  given  for  the 
plaintiff  or  defendant.  When  they  have  so  agreed  they 
reduce  the  verdict  to  form,  cause  their  foreman  to  sign 
it,  and  then  bring  it  into  court,  where  it  is  delivered  to 
the  clerk,  who  reads  it  and  asks  the  jury  if  it  is  their 
verdict.      If   they   assent   it   is   recorded.      If   either   party 


§  679]  CIVIL  PROCEDURE  429 

requests  it  the  jury  is  polled,  which  is  done  by  calling 
each  juror  separately  by  name  and  asking  him  if  the  ver- 
dict is  his.  If  any  juror  answers  in  the  negative  they  are 
sent  back  to  their  room  for  further  deliberation.  If  the 
jury  say  they  are  unable  to  agree  upon  a  verdict,  and 
the  judge  is  satisfied  that  such  is  the  fact,  he  may  dis- 
charge them,  in  which  event  the  case  must  be  tried  again. 

§  678.  Motion  to  set  verdict  aside  and  for  a  new 
trial. — The  party  against  whom  the  verdict  is  given 
may  move  to  set  it  aside  and  for  a  new  trial.  Such  motion 
may  be  based  upon  several  grounds,  as  that  the  jury 
was  guilty  of  corruption  or  gross  misconduct;  that  one 
or  more  of  the  jurors  had  fraudulently  procured  himself 
to  be  impaneled  and  sworn  after  he  had  formed  and  ex- 
pressed an  opinion  as  to  the  merits  of  the  case;  that 
some  one  in  the  interest  of  the  prevailing  party  had  tam- 
pered with  the  jury;  that  the  verdict  was  contrary  to  law 
or  the  evidence  or  that  the  court  instructed  the  jury 
improperly  as  to  the  law.  To  establish  misconduct  on  the 
part  of  the  jurors  resort  must  be  had  to  the  testimony  of 
witnesses  other  than  jurors,  it  being  a  rule  that  no  juror 
will  be  heard  to  testify  against  the  verdict,  but  he  is  per- 
mitted to  testify  in  support  of  it.  If  the  motion  is  over- 
ruled judgment  will  be  rendered  according  to  the  verdict, 
and  this  will  stand  as  a  final  adjudication  of  the  rights 
of  the  parties  unless  a  higher  court,  for  good  cause  shown, 
reverses  the  judgment. 

§  679.  Motion  in  arrest  of  judgment. — Another  way 
of  getting  rid  of  an  adverse  verdict  is  by  a  motion  in 
arrest  of  judgment.  This  motion  is  based  upon  some 
apparent  defect  or  omission  in  the  record  which  makes  it 
improper  for  the  court  to  give  judgment  on  the  verdict, 
as  where  after  verdict   for   the  plaintiff   it   appears   that 


430  ELEMENTARY    LAW  [§  680 

his  complaint  does  not  contain  allegations  sufficient  to 
constitute  a  cause  of  action.  When  the  verdict  is  set 
aside  on  this  motion,  the  plaintiff,  if  he  desires  to  con- 
tinue his  suit,  must  amend  his  complaint,  and  when  the 
issues  are  newly  made  the  case  will  stand  for  retrial. 
When  a  plea  or  answer  confesses  a  cause  of  action  and 
relies  upon  matter  in  avoidance  which  is  insufficient, 
although  found  to  be  true  by  the  verdict,  to  constitute  a 
defense  or  bar  to  the  action,  the  court  will  render  judg- 
ment for  the  plaintiff,  notwithstanding  the  verdict. 

§  680.  Forms  of  judgments. — Of  judgments  there 
are  various  kinds:  (1)  Judgment  by  confession  is  given 
against  a  party  who  appears  in  court  in  person  or  by 
attorney  and  admits  the  plaintiff's  claim.  (2)  Judgment 
by  default  is  taken  against  a  party  who  has  been  served 
with  a  summons  to  appear  to  an  action  and  fails  to  do 
so.  (3)  Judgment  upon  nonsuit  is  taken  against  a  plain- 
tiff who,  after  bringing  his  suit,  fails  or  refuses  to  prose- 
cute it.  (4)  Judgment  upon  demurrer  is  where  an  issue 
of  law  raised  by  demurrer  is  decided  by  the  court,  and 
the  party  against  whom  the  decision  is  made  refuses  to 
proceed  further,  in  which  case  judgment  is  rendered 
against  him.  (5)  Judgment  upon  the  verdict  is  where 
the  court  enters  upon  the  record  its  sentence  in  accord- 
ance with  the  verdict.  (6)  An  interlocutory  judgment  is 
a  judgment  which  decides  not  the  cause,  but  only  settles 
some  intervening  matter  relating  to  the  cause.  (7)  A 
final  judgment  is  a  judgment  which  disposes  of  the 
whole  merits  of  the  cause  and  leaves  nothing  for  further 
consideration  of  the  court. 

§  681.  Appeals  and  writs  of  error. — After  final  judg- 
ment, the  defeated  party,  if  not  content,  goes  to  a  higher 
court  upon  an  appeal  or  writ  of  error.     By  the  practice 


§  682]  civiiv  PROCEDURE  431 

in  some  states  an  appeal  takes  the  whole  case  to  a  higher 
court,  where  it  is  tried  again  on  the  merits.  In  othei 
states  an  appeal  to  the  higher  court  is  for  the  purpose  of 
having  the  record  reviewed,  to  see  if  the  proceedings  of 
the  court  below  have  been  according  to  law.  A  writ  of 
error  removes  the  cause  from  the  court  where  final  judg- 
ment was  given,  and  the  record  is  reviewed  for  the  pur- 
pose above  named.  In  either  case,  upon  appeal  or  error, 
the  judgment  of  the  court  below  is  affirmed,  reversed  or 
modified,  and  the  cause  is  then  sent  to  the  court  where 
the  judgment  was  entered  to  be  proceeded  with  or  disposed 
of  according  to  the  decision  of  the  higher  court. 

§  682.  Execution. — AVhen  the  case  is  finally  adju- 
dicated and  all  motions  and  appeals  and  writs  of  error 
are  disposed  of,  the  successful  party  is  entitled  to  have 
his  execution,  which  is  a  process  issuing  out  of  the  court 
where  judgment  is  given,  directed  to  the  sheriff  and  re- 
quiring him  to  satisfy  the  judgment  by  seizure  and  sale 
of  the  property  of  the  party  against  whom  the  judgment 
is  rendered.  The  manner  in  which  this  process  is  to  be 
executed  depends  upon  the  provisions  of  the  statutes  on 
that  subject. 


CHAPTER  LIV 
SPECIAL  PROCEEDINGS 


Sec. 

Sec. 

683. 

Contempt. 

687. 

Garnishment. 

684. 

Direct  and  indirect  or  con- 

688. 

Capias. 

structive  contempt. 

689. 

Arbitration. 

685. 

Attachment. 

690. 

Accord  and  satisfaction 

686. 

How  writ  served. 

691. 

Partition. 

§  683.  Contempt. — Contempt  is  disorderly,  con- 
temptuous or  insolent  language  or  behavior  in  the  presence 
of  a  legislative  or  judicial  body  tending  to  disturb  its  pro- 
ceedings or  to  impair  the  respect  due  to  its  authority;  or 
a  disobedience  to  the  rules  or  orders  of  such  a  body  which 
interferes  with  the  due  administration  of  the  law;  or 
speaking  or  writing  contemptuously  of  the  court  or  judges 
acting  in  a  judicial  capacity;  or  by  printing  false  accounts 
and  disrespectful  comments  upon  the  court  concerning 
causes  then  on  trial.  The  power  to  punish  for  contempt 
is  inherent  in  courts,  though  in  many  states  laws  have 
been  enacted  which  define  and  limit  the  power,  and  in 
some  cases  provide  for  appeals.  The  power  of  legislative 
bodies  to  punish  for  contempt  does  not  reside  in  inferior 
legislative  bodies,  such  as  town  councils.  Contempt  of 
court  may  be  committed  by  inferior  judges  or  magistrates, 
who  refuse  to  obey  the  lawful  orders  of  the  superior 
courts;  by  sheriffs  or  other  officers  of  the  court  in  oppres- 
sion or  neglect  of  duty;  by  attorneys  in  breach  of 
decorum  or  acts  of  gross  injustice;  by  jurors  in  miscon- 
duct after  they  are  impaneled  and  sworn;  by  persons 
summoned  as  witnesses  refusing  to  obey  the  summons; 
by   editors   and   publishers    who,    pending   a   cause,    print 

432 


§  685]  SPECIAL  PROCEEDINGS  433 

statements  concerning  the  court,  jury  or  parties,  calculated 
to  influence  the  decision;  by  persons  who  knowingly 
interfere  with  property  in  the  custody  of  the  officers  of 
the  court ;  by  persons  who  do  not  obey  injunctions  granted 
by  the  court. 

§  684.     Direct  and  indirect  or  constructive  contempt. 

— Where  the  act  constituting  the  contempt  is  in  the 
presence  of  the  court  it  is  a  direct  contempt,  and  the  court 
proceeds  at  once  to  punish  the  offender  without  hearing 
testimony.  Where  the  act  is  not  in  the  presence  of  the 
court  it  is  an  indirect  or  constructive  contempt,  and  in 
such  cases  it  is  usual  to  issue  a  summons  to  the  party  to 
appear  in  court  in  person  and  show  cause  why  he  should 
not  be  punished  for  contempt.  The  accused  will  be 
allowed  to  file  an  affidavit  or  to  state  facts  orally  on  oath 
showing  that  he  did  not  mean  any  disrespect  to  the  court ; 
or  he  may  be  compelled  to  answer  questions  put  to  him 
under  the  direction  of  the  court,  and  if  it  appears  upon 
the  hearing  that  the  accused  acted  in  good  faith  and 
without  any  intention  to  be  disrespectful  to  the  court  he 
will  usually  be  discharged.  When  adjudged  guilty  the 
court  may  fine  or  imprison  the  offender. 

§  685.  Attachment. — Attachment  is  a  proceeding  in 
aid  Qf  an  action  at  law  by  which,  at  or  after  the  com- 
mencement of  the  action,  the  plaintiff  causes  the  seizure 
of  the  defendant's  property  to  secure  the  satisfaction  of 
any  judgment  he  may  recover  in  the  action.  To  pro- 
cure this  seizure  the  plaintiff  must  make  an  affidavit 
showing  that  the  defendant  is  indebted  to  him  in  a  sum 
named;  that  he  has  sold  or  is  about  to  sell  and  dispose 
of  his  property  subject  to  execution,  with  the  intent  to 
delay  or  defraud  his  creditors ;  or  that  he  is  not  a  resident 
of  the  state  where  the  suit  is  pending.  These  are  the 
28— Elem.  Law. 


434  ELEMENTARY    LAW  [§  ^'>f^ 

usual  causes  which  are  alleged  as  a  basis  for  the  pro 
ceedings.  What  should  be  alleged,  liowever,  in  the 
affidavit,  as  well  as  the  other  steps  in  the  proceedings, 
are  matters  of  statutory  regulation.  Before  the  writ  of 
attachment  is  issued  the  plaintiff  must  execute  an  under- 
taking to  the  defendant  for  the  payment  of  all  costs  and 
damages  if  the  proceedings  are  wrongful  and  oppressive. 
Attachment  is  also  used  to  bring  persons  before  the 
court  or  into  its  custody  where  their  presence  is  made 
compulsory  by  the  law. 

§  686.  How  writ  served. — When  the  writ  is  issued 
and  comes  to  the  hands  of  the  sheriff,  it  is  his  duty  to 
execute  it  at  once  by  the  seizure  of  the  property  of  the 
defendant  sufficient  in  quantity  to  satisfy  the  plaintiff's 
demand.  If  through  his  neglect  the  plaintiff's  claim  is 
lost,  he  will  be  responsible  for  the  damages,  and  he  and 
his  sureties  may  be  sued  therefor  on  his  official  bond.  If 
he  seizes  property  the  defendant  may  reclaim  it  by  giv- 
ing a  bond  for  its  redelivery  in  case  there  is  a  judgment 
against  him,  or  that  he  will  pay  any  judgment  that  may 
be  awarded  against  him  in  the  action.  If  the  sheriff  is 
in  doubt  as  to  the  ownership  of  property  which  is  claimed 
by  persons  other  than  the  defendant,  he  may,  before 
seizing  it,  demand  that  the  plaintiff  make  and  deliver  to 
him  a  bond  to  indemnify  him  against  any  judgment 
which  may  be  rendered  against  him.  in  case  it  should 
turn  out  that  the  property  seized  did  not  belong  to  the 
defendant. 

§  687.  Garnishment. — If,  at  the  time  of  commence- 
ing  his  action  or  afterwards,  the  plaintiff  will  make  an 
affidavit  setting  forth  the  causes  for  attachment,  and  the 
additional  fact  that  certain  persons  are  indebted  to  the 
defendant,    a    writ    of    garnishment    will    be    issued    and 


§  689]  SPECIAL,  PROCEEDINGS  435 

served  upon  the  persons  named,  after  service  of  which 
it  is  their  duty  to  appear  in  court  and  make  answer,  and 
if  it  appears  that  they  owe  the  defendant  money  which 
should  be  applied  to  plaintiff's  claim,  the  court  will  order 
it  to  be  paid  into  court  to  satisfy  plaintiff's  judgment, 
if  he  shall  recover  judgment.  Matters  of  this  nature  are 
regulated  in  considerable  detail  by  statutes  in  the  several 
states. 

§  688.  Capias. — Another  proceeding  in  aid  of  an  ac- 
tion is  what  is  popularly  called  a  capias.  The  use  of  the 
capias  is  very  much  restricted  in  the  United  States,  and 
is  now  confined  to  cases  of  fraud  or  probable  injury  to 
the  plaintiff  by  reason  of  the  removal  of  the  defendant 
to  avoid  service  of  process;  and  to  cases  where,  after 
judgment,  the  defendant  fraudulently  conceals  money 
or  property  which  should  be  applied  to  its  satisfaction. 
The  writ  when  issued  requires  the  officer  to  take  and  keep 
the  defendant  until  he  is  discharged  by  order  of  court,  or 
until  he  procures  his  release  by  executing  such  bond  as 
the  statute  may  require. 

§  689.  Arbitration. — Arbitration  is  a  method  of  ad- 
justing conflicting  claims  by  the  parties  outside  of  court 
by  referring  the  matters  in  dispute  to  others.  It  is 
usual  where  there  are  two  parties  for  each  one  to  select 
a  person  to  represent  him.  The  persons  so  selected  are 
called  arbitrators,  and  if  they  can  not  agree  the  matter 
is  left  to  a  third  person  chosen  by  the  arbitrators  called 
the  umpire,  whose  decision  is  final,  and  the  decision, 
whether  made  by  the  arbitrators  or  the  umpire,  is  called 
the  award.  There  are  two  kinds  of  arbitration,  arbitra- 
tion according  to  statute  and  common-law  arbitration.  A 
statutory  arbitration  is  where  the  parties  pursue  the 
method  prescribed  by  law  and  enter  into  bonds   for   the 


436  ELEMENTARY    LAW  [§  690 

performance  of  the  award.  Where  such  an  award  is 
made  and  the  party  against  whom  it  is  given  fails  or 
refuses  to  perform  it,  the  matter  is  presented  to  court, 
where  the  award  is  confirmed  and  judgment  rendered 
accordingly,  unless  the  award  is  impeached  for  the  mis- 
conduct of  the  arbitrators  or  corruption.  A  common-law 
arbitration  is  where  the  parties  agree  either  verbally  or 
in  writing  to  submit  a  matter  to  arbitration  without  fol- 
lowing the  forms  prescribed  by  law.  Awards  made  in 
such  cases  may  be  made  the  basis  of  an  action  at  law  to 
enforce  its  terms. 

§  690.  Accord  and  satisfaction. — An  accord  and  sat- 
isfaction is  an  agreement  between  a  party  injured  and 
the  wrongdoer,  whereby  the  wrongdoer  agrees  to  do 
something  which  the  injured  party  accepts  in  satisfaction 
of  his  claim.  The  satisfaction  is  generally  different  and 
frequently  less  than  what  could  be  legally  enforced.  The 
law  encourages  all  efforts  made  by  parties  to  settle  con- 
troversies out  of  court,  and  when  they  make  such  settle- 
ments they  are  binding  and  will  be  enforced.  To  be  effective 
the  satisfaction  agreed  upon  must  be  performed.  A 
mere  tender  of  performance  if  not  accepted  is  not  a 
good  satisfaction. 

§  691.  Partition. — Partition  is  a  division  of  real 
property  amongst  several  persons  who  own  it  together. 
Partition  may  be  made  by  agreement  of  the  parties,  and 
if  they  can  not  agree  either  of  the  parties  can  institute 
legal  proceedings,  in  which  the  division  will  be  made  as 
the  court  may  ajudge.  Partition  by  agreement  is  a  very 
simple  matter,  the  parties  executing  mutual  releases  or 
conveyances  to  one  another.  They  may  also  submit  the 
matter  to  arbitration  instead  of  resorting  to  legal  pro- 
ceedings, and  in  such  case  the  award  of  the  arbitrators  or 


§  691]  SPECIAL.  PROCEEDING.S  437 

the  umpire  will  fix  the  rights  of  the  parties.  Where 
judicial  proceedings  are  resorted  to,  the  party  instituting 
the  action  files  his  petition  in  the  proper  court,  setting  out 
by  specific  description  the  property  sought  to  be  divided, 
giving  the  names  of  all  the  parties  in  interest  with  a 
statement  of  the  nature  and  extent  of  their  respective 
interests.  A  notice  or  summons  is  issued  and  served  upon 
all  the  defendants,  and  if  any  are  not  residents  of  the 
state  a  notice  by  publication  is  given  in  the  manner  pre- 
scribed by  statute.  Infants  appear  and  defend  either  by 
their  legal  guardian  or  by  guardian  ad  litem,  as  the 
statutes  of  the  several  states  require.  When  the  issues 
are  made  up  and  the  evidence  is  heard,  the  court  makes 
an  interlocutory  decree  of  partition  fixing  the  shares  of 
the  parties,  and  adjudicating  all  rights  and  equities  which 
may  arise  in  the  case.  Where  one  of  the  parties  has 
expended  money  for  the  preservation  of  the  property, 
or  where  it  is  shown  that  one  of  the  parties  has  received 
money  or  property  from  the  ancestor  by  way  of  advance- 
ment of  part  of  his  portion  which  is  to  be  charged 
against  his  interest,  in  all  such  cases  the  court  will  deter- 
mine the  rights  and  equities  of  the  parties  and  incorporate 
its  decisions  in  the  interlocutory  decree.  This  decree 
adjudges  that  the  division  be  made  by  commissioners, 
naming  them,  and  requires  the  commissioners  to  report 
their  doings  to  the  court.  When  this  report  comes  in 
and  it  shows  that  a  division  has  been  made,  any  party  in 
interest  has  the  right  to  except  to  the  report.  If  after 
hearing  the  report  the  court  determines  that  the  division 
is  unfair,  a  second  order  or  decree  is  made  requiring  the 
commissioners  to  make  a  new  decision.  When  the  report 
is  confirmed  the  court  makes  a  final  decree  which  estab- 
lishes the  rights  of  the  parties  to  their  shares  in  severalty. 
If  it  appears  that  the  property  can  not  be  divided  without 
injury  to  the  parties,  the  court  orders  it  to  be  sold,  ap- 


438  ei.eme;ntary  law  [§  691 

pointing  a  commissioner  for  that  purpose.  Where  it  is 
sold  and  the  sale  is  reported  and  the  report  confirmed, 
the  final  decree  is  made  dividing  the  proceeds  of  the  sale 
amongst  the  parties  according  to  their  respective  interests 
and  directing  the  commissioners  to  make  a  proper  deed 
to  the  purchaser. 


CHAPTER  LV 


CRIMINAL  PROCEDURE 


Sec. 

Sec. 

692. 

Arrest. 

704. 

693. 

Warrant  for  arrest. 

694. 

When    warrant    void    and 

705. 

when  valid. 

706. 

695. 

Arrest   by   officer   without 

707. 

warrant. 

708. 

696. 

Arrest  by  private  person. 

709. 

697. 

Arrest  upon  hue  and  cry. 

698. 

What  an  officer  may  do  in 

710. 

serving   warrant   and 

711. 

making  arrest. 

712. 

699. 

Extradition. 

700. 

Examinations — Bail. 

713. 

701. 

Right     to     speedy     trial — 

Presence   of   accused   in 

714. 

court. 

715. 

702. 

Right  of  prisoner  to  have 
counsel. 

703. 

Change  of  venue. 

Application  for  continu- 
ance. 

Indictment  —  Information. 

Pleas  to  indictment. 

Arraignment. 

Jury  impaneling. 

Opening  statements  of 
counsel. 

Examination  of  witnesses. 

Rules  of  evidence. 

Special  rules  of  evidence 
in  criminal  cases. 

Final  arguments  of  coun- 
sel. 

Conduct  of  jury — Verdict. 

Motion  for  new  trial — Ar- 
rest of  judgment — Exe- 
cution. 


§  692.  Arrest. — The  criminal  law  having  been  vio- 
lated, the  question  arises,  how  shall  the  offender  be 
brought  to  punishment?  And  first,  of  arrest,  which  is 
the  taking  into  custody  an  alleged  offender,  in  order  that 
he  may  be  tried.  The  arrest  may  be  made  by  an  officer 
or  any  citizen  with  a  warrant,  by  an  officer  or  citizen 
without  warrant,  by  any  person  upon  hue  and  cry. 


§  693.  Warrant  for  arrest. — A  warrant  is  a  writ 
directed  to  a  sheriff,  constable  or  officer,  or  other  person 
named,  requiring  him  to  apprehend  and  bring  before  the 
magistrate  or  court,  from  which  the  writ  issues,  the  per- 

439 


440  ELEMENTARY    LAW  [§  694 

son  named  in  the  writ  as  the  offender.  The  warrant, 
when  issued  by  a  magistrate,  is  based  upon  an  oath  made 
by  some  citizen  charging  the  person  named  therein  with 
the  violation  of  some  criminal  law.  When  issued  by  a 
court,  it  is  based  upon  an  indictment  found  by  the  grand 
jury,  or  upon  an  information  filed  by  the  public  pros- 
ecutor. It  is  the  duty  of  the  officer,  or  person  charged 
with  the  duty  of  serving  the  warrant  to  make  the  arrest 
without  delay,  and  this  is  done  by  notifying  the  alleged 
offender  named  in  the  warrant  that  he  is  arrested.  It  is 
proper  and  usual  to  lay  hands  on  the  accused.  A  mere 
touching  with  the  fingers  is  enough,  and  even  this  may  be 
waived  by  the  defendant  if  he  submits  to  arrest.  If  a 
question  is  raised  as  to  the  authority  of  the  officer  or 
person  making  the  arrest,  it  is  customary  for  him  to 
show  the  warrant,  though  this  is  not  necessary,  if  he  state 
the  substance  of  the  writ.  If  the  offender  knows  the 
person  to  be  an  officer,  no  further  notice  is  required,  and 
so  if  the  officer  exhibits  his  badge  of  office. 

§  694.  When  warrant  void  and  when  valid. — A  war- 
rant issued  by  a  magistrate  or  court  which  has  no  juris- 
diction of  the  offense  charged  gives  no  authority  to  the 
officer  or  person  named  to  make  the  arrest.  It  must  ap- 
pear to  be  based  upon  some  formal  accusation  made 
before  a  competent  magistrate  or  tribunal,  and  to  charge 
the  person  named  therein  with  the  commission  of  a 
specific  offense;  and  it  must  bear  the  seal  or  signature  of 
the  court  or  magistrate  who  issued  it.  Mere  clerical  or 
formal  errors  are  immaterial  and  will  not  destroy  the 
validity  of  the  writ.  If  an  officer  makes  an  arrest  upon 
a  void  and  illegal  writ,  he  does  so  at  his  peril,  and  if  the 
person  apprehended  is  innocent,  the  officer  may  be  liable 
in  damages  for  false  imprisonment. 


§  696]  CRIMINAL,    PROCEDURE  441 

§  695.  Arrest  by  officer  without  warrant. — An  offi- 
cer is  in  duty  bound  to  arrest  for  felony  without  warrant 
where  there  is  reasonable  ground  for  suspecting  the  party 
to  be  guilty.  If  a  crime  or  misdemeanor  is  committed  in 
his  presence,  he  may  arrest  the  offender.  If  he  is  in- 
formed by  others  that  a  crime  has  been  committed  he 
must  act  with  discretion  and  prudence  and  upon  reason- 
able grounds.  It  is  the  safer  course  always,  wlien  time 
will  permit,  to  delay  making  arrest  upon  information 
without  warrant  and  require  those  making  the  complaint 
or  charge  to  make  oath  to  it  before  a  proper  magistrate. 
The  question  in  all  such  cases  for  the  officer  is,  has  he 
good  grounds  to  believe  that  a  crime  has  been  or  is  about 
to  be  committed? 

The  better  view  seems  to  be  that  an  officer  can  not 
arrest  a  person  without  a  warrant  for  minor  offenses, 
except  where  committed  in  his  presence.  Some  courts 
require  also  that  it  must  amount  to  a  breach  of  the 
peace. 

§  696.  Arrest  by  private  person. — Private  persons 
who  are  called  upon  by  a  proper  officer  to  assist  in  mak- 
ing an  arrest  for  felony  must  obey,  and  it  is  an  offense 
against  the  law  to  refuse.  In  cases  of  felonies,  if  a 
private  person  without  warrant  has  reasonable  ground  to 
suspect  another  of  being  the  guilty  party,  he  may,  if 
acting  without  malice  and  in  good  faith,  make  the  arrest, 
and  for  doing  so  he  is  not  liable  civilly  or  criminally  if 
the  arrested  person  proves  to  be  innocent.  To  protect  a 
private  person  who  makes  an  arrest  for  felony  without 
warrant,  it  is  necessary  that  a  felony  should  have  been 
committed,  and  that  the  person  had  good  ground  to 
believe  that  the  person  arrested  was  tlie  guilty  party.  An 
officer   is   protected    in   such   case   if    he   have    reasonable 


442  EI^ICMUNTAKV    LAW  [§  697 

ground    to    believe    that    the    party    is    guilty,    whether    a 
felony  has  been  committed  or  not. 

§  697.  Arrest  upon  hue  and  cry. — If  a  crime  has 
been  committed  and  an  officer  or  people  are  in  pursuit 
of  a  suspected  offender,  any  citizen  acting  in  good  faith 
may  apprehend  the  person  pursued  and  keep  him  in 
custody  until  he  has  opportunity  to  deliver  him  to  the 
officers  of  the  law. 

§  698.  What  an  officer  may  do  in  serving  v^^arrant 
and  making  arrest. — An  officer  with  a  warrant  for  the 
arrest  of  a  person  may  pursue  him  to  his  home,  and  if 
necessary  he  may  break  down  the  doors.  A  private  per- 
son without  a  warrant,  who  has  good  reasons  for  believ- 
ing that  one  has  committed  a  felony,  may  use  the  same 
force  in  making  the  arrest,  though  if  the  party  arrested 
prove  to  be  innocent  an  action  for  damages  would  lie 
against  the  persons  so  breaking  open  doors  without  war- 
rant. Mere  suspicion  of  guilt  will  not  justify  such  a 
course  on  the  part  of  a  private  person.  If  an  offender 
secretes  himself  in  the  house  of  another,  the  right  to 
arrest  him  and  to  use  force  is  the  same  as  if  he  were  in 
his  own  house.  Upon  proper  affidavits  magistrates  issue 
search-warrants  for  stolen  goods,  and  an  officer  having 
such  a  warrant  may  break  open  doors,  trunks,  etc.,  in 
prosecuting  his  search.  Before  resorting  to  such  violence, 
however,  he  should  make  a  demand  for  peaceful  entrance 
and  for  the  keys  of  trunks  or  chests  in  which  the  stolen 
goods  are  suspected  to  be. 

§  699.  Extradition. — Where  one  who  has  commit- 
ted a  crime  in  one  state  flees  to  another,  his  arrest  may 
be  accomplished  by  means  of  a  writ  of  extradition.  This 
writ  is  issued  by  authority  of  the  state  where  the  fugitive 


§  700]  CRIMINAL    PROCEDURE  443 

may  be  in  hiding,  upon  a  formal  application  of  the 
governor  of  the  state  in  which  the  crime  was  committed. 
The  extradition  of  fugitives  from  justice  is  in  obedience 
to  a  requirement  of  the  Constitution  of  the  United 
States,  which  provides  that  "a.  person  charged  in  any 
state  with  treason,  felony,  or  other  crime,  who  shall  flee 
from  justice,  and  be  found  in  another  state,  shall,  on 
demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the 
state  having  jurisdiction  of  the  crime."  This  provision 
includes  every  crime  punishable  in  the  state  making  the 
requisition.  The  person  who  takes  custody  of  the  fugi- 
tive for  the  purpose  of  bringing  him  to  the  state  from 
which  he  fled  is  not  necessarily  an  officer.  He  is  the 
agent  of  the  state  making  the  demand  and  is  named  in 
the  requisition.  When  he  has  custody  of  the  fugitive 
it  is  his  duty  to  transport  him  without  delay  to  the  state 
and  county  where  the  crime  was  committed  and  to 
deliver  him  over  to  the  proper  officer,  to  be  dealt  with 
according  to  law. 

Fugitives  from  justice  who  seek  refuge  in  a  foreign 
country  are  delivered  up  according  to  the  stipulations  of 
the  treaties  made  upon  that  subject.  The  crimes  for 
which  such  fugitives  will  be  surrendered  to  the  country 
claiming  them  are  enumerated  in  the  treaties.  No 
civilized  country,  however,  will  deliver  up  a  fugitive  who 
is  charged  with  a  political  offense.  * 

§  700.  Examinations,  bail,  etc. — The  accused  being 
in  custody  and  before  the  officer  or  court  having  juris- 
diction of  the  case,  he  is  entitled  to  have  an  examination 
and  trial  in  due  course  of  law.  If  the  offense  is  trivial, 
the  magistrate,  mayor,  justice  of  the  peace,  or  police 
judge,  proceeds  promptly  to  hear  the  case  and  assess  the 
penalty.     In  such  cases  the  judgment  is   final   unless   by 


444  ELEMEINTARY    LAW  [§  701 

Statute  an  appeal  to  a  higher  court  is  allowed.  If  the 
offense  is  of  a  higher  grade  and  one  of  which  the 
magistrate  who  issued  the  writ  has  not  jurisdiction  to  try, 
he  proceeds  in  a  summary  way  to  hear  the  evidence,  and 
if  a  case  of  probable  guilt  is  made  out,  he  requires  the 
accused  to  give  bail,  if  the  offense  be  bailable,  for  his 
appearance  before  the  court  having  final  jurisdiction,  to 
answer  the  charge;  and  if  bail  is  not  given,  the  accused 
is  imprisoned  until  the  charge  against  him  is  disposed  of 
by  that  court.  If  on  the  preliminary  examination  the 
magistrate  should  decide  that  the  evidence  did  not  estab- 
lish a  case  of  probable  guilt,  the  accused  would  be  dis- 
charged. Such  a  discharge,  not  being  a  final  judgment, 
would  be  no  bar  to  subsequent  arrests  and  trials  for  the 
same  offense. 

§  701.  Right  to  speedy  trial — Presence  of  accused 
in  court. — Where  bail  is  given,  or  the  accused  is  im- 
prisoned by  the  examining  magistrate  for  want  of  bail, 
he  is  entitled  to  have  the  charge  against  him  investigated 
at  the  next  term  of  the  court  having  jurisdiction.  If  no 
indictment  is  found  against  him  and  no  formal  charge 
made  in  that  court,  he  will  be  discharged.  When  the  in- 
dictment is  found  by  the  grand  jury,  or  an  information  is 
filed  by  the  prosecutor,  the  defendant  is  entitled  to  be 
arraigned  and  have  the  charge  read  to  him  in  open  court. 
He  can  waive  this  right  and  appear  and  plead  by  attor- 
ney if  he  pleases.  When  a  prisoner  is  in  custody,  he  has 
a  right  to  be  present  in  court  at  every  stage  of  the  pro- 
ceedings. If  he  is  on  bail  and  voluntarily  absents  himself 
during  a  part  of  the  proceedings,  such  absence  will  not 
affect  the  validity  of  his  trial  and  conviction. 

§  702.  Right  of  prisoner  to  have  counsel. — The 
right  of  the  prisoner  to  be  represented  by  counsel  is  guar- 


§  704]  CRIMINAL  trocedure;  445 

anteed  by  the  Constitution  of  the  United  States  and  by 
the  constitutions  of  most  of  the  states.  If  he  is  not  able, 
or  refuses  to  employ  counsel,  the  court  will  assign  some 
attorney  to  appear  for  the  prisoner  and  conduct  his 
defense.  An  attorney  who  is  so  designated  by  the  court 
is  bound  to  perform  the  duty  assigned  him.  In  some 
jurisdictions  the  attorney  receives  no  compensation,  in 
others  the  court  makes  him  an  allowance  which  is  paid 
out  of  the  public  treasury,  as  other  court  expenses  are 
paid. 

§  703.  Change  of  venue. — The  defendant  has  a 
right  to  be  tried  by  an  impartial  court  and  an  unprejudiced 
jury.  If  it  is  shown  to  the  satisfaction  of  the  court  by 
proper  affidavits  that  the  local  prejudice  in  the  place  where 
the  prisoner  is  arraigned  for  trial  is  so  great  that  it  would 
be  impossible  to  give  him  a  fair  trial,  the  place  of  trial 
will  be  changed  to  another  jurisdiction.  In  some  states 
the  judge  has  no  discretion,  but  must  award  the  change 
when  applied  for  in  the  form  required  by  law.  In  other 
states  the  judge  may  allow  or  refuse  the  application  at 
his  discretion.  The  same  rules  apply  where  the  prisoner 
impeaches  the  partiality  of  the  judge  and  demands  a  trial 
before  an  unprejudiced  judge. 

§  704.  Application  for  continuance. — If  the  prose- 
cutor or  defendant  is  not  ready  to  proceed  with  the  trial 
on  account  of  the  sickness  or  absence  of  important  wit- 
nesses, the  court  will  grant  a  continuance.  A  mere  state- 
ment of  the  prosecutor  that  he  is  not  prepared  to  proceed 
is  usually  enough  to  procure  a  continuance.  A  stricter 
rule  is  applied  to  the  defendant  who  in  order  to  procure 
a  continuance  must  show  to  the  court  by  affidavits  that  a 
material  witness  or  witnesses  are  absent,  that  it  was 
impossible  by  the  exercise  of  reasonable  diligence  to  pro- 


446  Ulementarv  law  [§  705 

cure  their  attendance,  that  he  has  reasonable  grounds  for 
beheving  that  their  attendance  may  be  procured  if  time 
is  given,  that  the  facts  he  expects  to  prove  by  the  testi- 
mony of  the  absent  witness  can  not  be  estabHshed  so  well 
by  any  other  available  witness.  In  extreme  cases  con- 
tinuances will  be  granted  on  account  of  the  sickness  of 
the  defendant  or  his  counsel  or  where  on  account  of 
some  temporai-y  local  excitement  it  would  be  prejudicial 
to  the  defendant  to  be  forced  to  trial.  An  improper 
refusal  to  grant  a  continuance  is  an  error  which  will 
reverse  a  case  in  the  appellate  court  if  the  defendant 
should  be  tried  and  convicted.  Where  proper  affidavits 
are  filed,  a  continuance  may  be  avoided  by  the  admission 
of  the  prosecutor  that  the  absent  witness  if  present  would 
testify  to  the  facts  set  forth  in  the  affidavits. 

§  705.  Indictment — Information. — The  indictment  is 
a  written  accusation  charging  the  persons  named  therein 
with  the  commission  of  a  crime,  presented  on  oath  by 
the  grand  jury.  An  information  is  a  similar  charge  not 
presented  by  the  grand  jury  but  signed  by  the  prosecuting 
officer.  In  substance  they  are  the  same.  Each  must 
charge  the  defendant  named  with  a  specific  offense,  giv- 
ing time,  place,  person  and  every  circumstance  so  as  to 
inform  the  accused  of  the  exact  nature  of  the  charge  he 
is  to  answer.  In  the  caption  the  state  and  county  in 
which  the  offense  was  committed  and  the  name  of  the 
court  should  appear.  The  indictment  must  be  signed  by 
the  prosecuting  attorney  and  indorsed,  "A  true  bill,"  by 
the  foreman  of  the  grand  jury.  If  a  single  count  in  an 
indictment  charges  two  distinct  crimes,  it  will  be  bad  for 
duplicity,  as  where  the  same  count  contains  a  charge  of 
murder  and  robbery.  Where  an  indictment  in  describing 
the  offense  follows  substantially  the  language  of  the 
statute,  it  is  sufficient. 


§  708]  CRIMINAL    PROCIJDURE  447 

§  706.  Pleas  to  indictment. — Before  entering-  his 
plea  to  the  charge  against  him,  the  defendant  may  move 
to  quash  the  indictment  or  information  for  some  defect 
apparent  upon  the  face  of  it,  as  if  it  does  not  charge  the 
offense  properly  or  is  not  signed  by  the  prosecutor  or 
indorsed  by  the  foreman  of  the  grand  jury,  or  if  the 
names  of  the  principal  witnesses  for  the  prosecution  do 
not  appear  upon  it,  or  if  the  date  of  the  offense  as 
charged  is  subsequent  to  the  finding  of  the  indictment  or 
the  filing  of  the  information,  or  if  the  date  named  is 
beyond  the  period  prescribed  by  the  statute  of  limitations. 
What  are  and  what  are  not  sufficient  grounds  for  a 
motion  to  quash  is  ordinarily  determined  by  the  statutes 
of  the  states.  The  motion  to  quash  should  precede  the 
plea,  though  the  court  will  allow  a  plea  already  entered 
to  be  withdrawn  and  give  the  defendant  leave  to  move 
to  quash  the  indictment  or  information. 

§  707.  Arraignment. — The  arraignment  consists  of 
calling  the  prisoner  to  the  bar  by  name,  reading  the  indict- 
ment to  him,  and  asking  him  whether  he  is  guilty  or  not 
guilty  of  the  offense  charged.  When  thus  arraigned  he 
may  demur  to  the  indictment,  plead  either  to  the  jurisdic- 
tion, in  abatement,  a  former  conviction  or  acquittal  of 
the  same  offense,  a  pardon,  or  not  guilty.  If  he  stands 
mute  and  refuses  to  plead,  the  court  will  order  a  plea  of 
not  guilty  to  be  entered.  If  the  defendant  pleads  guilty, 
nothing  remains  for  the  court  to  do  but  to  pass  sentence. 
The  plea  of  guilty  can  be  made  only  by  the  defendant  in 
person,  and  in  open  court.  The  plea  of  not  guilty  puts 
in  issue  all  the  material  averments  in  the  indictment  and 
information. 

§  708.  Jury  impaneling.— The  case  being  put  at 
'ssue  by   the   plea   of   not   guilty,    the   impaneling   of   the 


448  ELEMENTARY    LAW  [§  709 

jury  comes  next  in  order.  Most  of  the  states  have  special 
statutes  directing  how  jurors  are  to  be  selected,  and  how 
and  for  what  causes  they  may  be  challenged.  There  are 
three  kinds  of  challenges,  namely  :  challenge  to  the  array, 
which  is  an  objection  to  the  whole  body  of  jurors  returned 
by  the  sheriff  for  some  irregularity  or  misconduct  on  the 
part  of  the  sheriff;  the  peremptory  challenge,  which  is  an 
objection  to  an  individual  juror  without  stating  any 
reason,  the  number  of  such  challenges  being  limited  by 
law;  the  challenge  for  cause,  which  is  an  objection  to  an 
individual  juror  on  account  of  bias,  partiality  or  the 
existence  in  his  mind  of  a  prejudice  against  the  defendant, 
or  of  a  preconceived  opinion  of  his  guilt,  there  being  no 
limit  to  the  number  of  challenges  of  this  kind.  The  jury 
is  not  complete  until  twelve  men  are  selected.  When  all 
challenges  are  exhausted  or  waived  and  the  panel  is  full, 
the  jurors  are  sworn  in  open  court  to  try  the  case. 

§  709.  Opening  statements  of  counsel. — When  the 
jury  are  impaneled  and  sworn,  the  prosecuting  attorney 
opens  the  case  by  stating  the  substance  of  the  evidence 
he  proposes  to  submit  to  the  jury.  This  statement  should 
be  full  and  candid,  so  as  to  notify  counsel  for  defense  of 
the  case  they  are  expected  to  meet.  Then  follows  the 
statement  for  the  defense,  or,  if  counsel  prefer,  the  state- 
ment for  the  defense  is  postponed  until  the  evidence  for 
the  prosecution  has  been  put  in.  The  order  of  these 
opening  addresses  is  a  matter  within  the  discretion  of 
the  court,  except  in  those  states  where  the  statutes  pre- 
scribe it. 

§  710.  Examination  of  witnesses. — The  witnesses 
for  the  prosecution  are  then  called  and  examined.  It  is 
usual  for  one  counsel  only  to  conduct  the  direct  examina- 
tion,  and  one  to  conduct  the  cross-examination  of  each 


§711]  CRIMINAL   PROCEDURE  449 

witness.  This  is  a  matter  of  usage,  however,  regulated 
by  the  practice  of  each  court.  Upon  request  the  presiding 
judge  may  allow  other  counsel  in  the  case  to  interrogate 
the  witness.  Arbitrary  rules  are  not  enforced,  the  object 
being  to  get  all  the  material  facts  before  the  jury,  and 
the  judge  is  allowed  a  large  discretion  in  determining 
the  order  in  which  the  evidence  is  to  be  introduced.  It 
sometimes  happens  that  important  facts  are  within  the 
knowledge  of  a  witness  who  has  been  examined  and  dis- 
charged, and  which  was  not  elicited  upon  his  examination. 
Where  this  appears  to  be  the  case  the  court  may  allow 
such  witness  to  be  recalled  by  the  prosecution  or  defense, 
even  after  it  has  been  announced  that  the  evidence  is 
all  in. 

§711.  Rules  of  evidence. — The  general  rules  of  evi- 
dence as  to  its  competency  and  relevancy  are  the  same  in 
criminal  as  in  civil  cases ;  as  to  the  weight  and  effect  of 
the  evidence  the  rules  are  different.  A  bare  preponder- 
ance of  evidence  is  enough  to  establish  the  plaintiff's  right 
to  recover  in  a  civil  case ;  in  a  criminal  case  every  material 
allegation  in  the  indictment  must  be  proved  beyond  a 
reasonable  doubt,  and  every  fact  necessary  to  establish 
guilt  must  be  proved  in  like  manner.  In  civil  cases  where 
one  side  or  the  other  has  produced  evidence  which  prima 
facie  establishes  a  given  fact,  the  burden  of  proof  shifts 
to  the  party  against  whom  the  prima  facie  case  is  made; 
in  criminal  cases  the  burden  never  shifts,  the  presumption 
of  the  prisoner's  innocence  follows  and  shields  him 
throughout  the  case  until  the  measure  of  proof  establishes 
his  guilt  beyond  a  reasonable  doubt.  In  some  states  even 
the  presumption  of  the  sanity  of  the  accused  does  not 
require  him  to  prove  his  insanity  when  that  is  urged  as 
a  defense.  It  is  incumbent  on  the  state  to  establish  his 
sanity  beyond  a  reasonable  doubt,  though  the  general  rule 
29 — Elem.  Law. 


450  ELEMENTARY    LAW  [§  ^1- 

in  most  of  the  states  puts  the  l)urden  of  estabhshing  the 
defense  of  insanity  upon  the  defendant.  So  where  the 
defense  of  self-defense  is  urged  in  behalf  of  one  on  trial 
for  homicide  or  assault  and  battery,  the  burden  of  proof 
is  upon  the  state  to  negative  it,  though  in  a  few  states 
a  contrary  rule  prevails.  The  same  may  be  said  of  the 
presumption  of  guilt  arising  against  one  accused  of 
larceny  from  the  possession  of  goods  recently  stolen. 
Where  the  state  undertakes  to  establish  the  guilt  of  the 
accused  by  circumstantial  evidence  consisting  of  a  chain 
of  facts,  every  fact  essential  to  the  continuity  of  the 
chain  must  be  established  beyond  a  reasonable  doubt. 
The  rule  in  such  cases  is  that  the  facts  proved  must  be 
absolutely  inconsistent  with  the  theory  of  the  innocence 
of  the  accused. 

§  712.  Special  rules  of  evidence  in  criminal  cases. — 
There  are  some  other  special  rules  of  criminal  evidence 
which  should  be  noted.  The  dying  declarations  of  the 
victim  of  homicide,  if  made  when  death  is  imminent  and 
expected  by  the  victim,  are  competent  evidence  to  prove 
the  circumstances  attending  the  transaction,  the  name  of 
the  slayer,  etc.  The  voluntary  confessions  of  the  accused 
are  evidence  against  him ;  when  made  in  open  court  they 
are  called  judicial  confessions,  and  when  made  elsewhere 
they  are  called  extra-judicial  confessions.  When  an 
accomplice  turns  state's  evidence  and  testifies  against  his 
confederates,  his  evidence  is  received,  but  is  not  enough 
to  establish  the  guilt  of  the  accused  unless  it  is  corrob- 
orated by  other  witnesses  or  other  facts  in  evidence. 
When  two  accomplices  testify,  the  evidence  of  one  can 
not  be  considered  as  a  corroboration  of  the  evidence  of 
the  other.  If  the  accused  is  not  content  with  the  pre- 
sumption of  innocence  which  the  law  allows  in  liis  favor, 
but  desires  to  strengthen  it,  he  may  do  so  by  introducing 


§  714]  CRIMINAL,  PROCEDURE  451 

proof  of  his  good  character.     When  he  does  so,  however, 
the  state  may  meet  it  by  contrary  proof. 

§  713.  Final  arguments  of  counsel. — When  the  evi- 
dence is  all  in,  counsel  address  the  jury.  They  are  re- 
quired to  confine  themselves  to  a  discussion  of  questions 
of  fact,  for  the  court  is  to  charge  the  jury  as  to  the  law 
of  the  case.  The  jury  are  bound  by  their  oaths  to  find 
the  facts  according  to  the  evidence  as  given  by  the  wit- 
nesses and  the  law  as  given  to  them  by  the  court.  In 
some  states,  however,  the  law  makes  the  jury  the  judges 
of  the  law  as  well  as  the  facts,  and  where  this  is  the 
case,  counsel  have  a  larger  liberty  and  may  argue  to  the 
jury  that  the  law  is  different  from  that  which  is  given  to 
them  by  the  court.  The  cases  are  rare,  however,  in 
which  counsel  resort  to  this  practice.  It  is  common 
practice  in  the  English  courts  and  in  the  federal  courts 
for  the  presiding  judge  to  comment  upon  and  sum  up 
the  evidence  in  his  charge,  but  this  is  seldom  done  in 
the  state  courts,  where  the  statutes  generally  require  the 
judge,  when  so  requested,  to  submit  his  instructions  to 
the  jury  in  writing. 

§  714.  Conduct  of  jury — Verdict. — The  rules  regu- 
lating the  conduct  of  the  jury  after  they  retire  to 
deliberate  upon  their  verdict  and  as  to  the  manner  of 
signing  and  returning  the  verdict  into  court  are  the  same 
in  criminal  as  in  civil  cases.  The  defendant  has  a  right 
to  demand  that  the  jury  be  polled,  which  is  done  by  call- 
ing each  juror  by  name  and  asking  him  if  the  verdict 
signed  by  the  foreman  is  his  verdict.  If  any  one  of  the 
twelve  answers  in  the  negative  the  whole  jury  are  sent 
to  their  room  for  further  deliberation.  When  it  is  re- 
turned into  court  the  verdict  is  recorded  by  the  clerk. 


452  ELEMENTARY    LAW  [§  715 

§  715.  Motion  ior  new  trial — Arrest  of  judgment — 
Execution. — After  verdict  the  defendant  may  move 
for  a  new  trial :  ( 1  )  For  newly-discovered  evidence, 
when  it  is  made  to  appear  that  the  defendant  by  the 
exercise  of  due  diligence  could  not  have  produced  it  at 
the  trial,  that  the  newly-discovered  evidence  is  material 
and  not  merely  cumulative,  that  is,  tending  to  make  fur- 
ther proof  of  a  fact  upon  which  some  evidence  was  pro- 
duced at  the  trial;  (2)  irregularity  in  summoning  the 
jury;  (3)  misconduct  of  jurors;  (4)  tampering  with 
jurors;  (5)  bias  or  hostility  of  jurors,  which  was  un- 
known to  defendant  when  they  were  accepted  and  sworn ; 
(6)  that  the  verdict  was  contrary  'to  evidence;  (7)  that 
the  verdict  was  contrary  to  law.  If  the  motion  for  a  new 
trial  is  denied,  the  defendant  may  move  in  arrest  of  judg- 
ment, and  to  sustain  this  motion  he  must  show  that  there 
are  defects  in  the  record  of  the  proceedings  which  are  not 
cured  by  the  verdict.  If  these  motions  are  denied  sen- 
tence is  pronounced  and  the  judgment  of  the  court  is 
executed,  unless  upon  appeal  or  writ  of  error  a  higher 
court  reverses  the  judgment. 


INDEX 


[References  are  to  Sections] 

A 

ABATEMENT, 

pleading  in,  662. 

ABDUCTION,  270. 

ABORTION,  264. 

ABUSE  OF  PROCESS,  76. 

ACCEPTANCE, 

See  Offeb  and  Acceptance. 

ACCEPTANCE  OF  BILL  OF  EXCHANGE,  477. 

ACCESSORIES,  257. 

ACCOMPLICE, 

evidence  of,  712. 

ACCORD  AND  SATISFACTION, 
defined,  690 

ADEQUACY  OF  CONSIDERATION,  451. 

ADMINISTRATION  OF  JUSTICE, 
definition,  15. 

ADMINISTRATIVE  LAW, 
in  general,  611-624. 

ADMINISTRATOR, 

how  appointed,  421. 

rights  and  duties  of,  421, 

de  bonis  non,  421. 

sales  of  land  by,  421,  422. 

with  the  will  annexed,  422. 

promise  under  statute  of  frauds,  463. 

ADMIRALTY. 

origin  and  history,  652. 
jurisdiction,  653. 
procedure,  654. 

453 


454  INDEX 

[References  are  to  Sections] 

ADMISSIONS, 

when  evidence,  673. 

ADULTERY, 

defined,  265. 

as  ground  for  divorce,  561. 

ADVANCEMENT,  691. 

ADVERSE  POSSESSION,  397. 

deeds  of  lands,  so  held,  407. 

ADVOWSON,  322. 

AFFIDAVITS, 

when  privileged,  97. 

AFFRAY,  272. 

AGENT, 

See  Principal  and  Agent. 

promissory  notes  of,  483. 

contracts  by,  526. 

who  may  be,  526. 

can  not  assume  incompatible  duties,  526. 

how  appointed,  526. 

generally  can  not  delegate  authority,  526,  5301 

authority  of,  how  ascertained,  527,  528. 

private  instructions  to,  by  principal,  528. 

ambiguous  authority,  528. 

acts  in  excess  of  authority,  528. 

declarations  of,  as  evidence,  528. 

liability  of  to  principal,  530. 

frauds  of,  530. 

when  authority  ceases,  531. 

AIDING  AND  COUNSELING  IN  CRIMES,  249. 

AIDS  UNDER  FEUDAL  SYSTEM,  339,  351. 

ALIENS, 

contracts  of,  442. 

ALLODIAL  ESTATES,  334,  360. 

ALLUVIAL  DEPOSITS,  316. 


INDEX  455 

[References  are  to   Sections] 

AMBASSADORS, 

privilege  from  arrest,  69,  70. 
crimes  of,  626. 

AMPHICTYONIC  COUNCIL,  625. 

ANCIENT  TENURES, 

in  general,  344-357. 

ANIMALS, 

injury  to,  223. 

trespass  on  lands,  224. 

duty  of  owner  at  common  law,  225. 

duty  of  owner  in  United  States,  226. 

remedies  for  trespasses,  227. 

injuries  by,  when  not  trespassing  on  land,  228. 

vicious  and  dangerous,  228. 

owner's  knowledge  of  danger,  229. 

ANTENUPTIAL  AGREEMENTS,  382. 

APPEAL,  68L 

APPORTIONMENT  OF  RENT,  375. 

APPRENTICES,  534. 

APPURTENANCES, 
defined,  320. 

ARBITRATION,  689. 

ARGUMENTS  OF  COUNSEL, 
privilege  of,  97. 
in  civil  cases,  676. 
in  criminal  cases,  713. 

ARMS, 

right  to  bear,  596. 

ARRAIGNMENT,  707 

ARREST, 

for  crime,  63,  692. 

by  officer  without  warrant,  65,  695. 

by  private  person,  65,  696. 

what  ofiicer  may  do  in  serving  warrant,  66,  698. 

privilege  from,  69. 

definition  of  civil  arrest,  69. 


456  INDEX 

[References  are  to  Sections'^ 

ARREST— Continued, 
warrant  for,  693. 
upon  hue  and  cry,  697. 

ARREST  OF  JUDGMENT,  679. 

ARSON,  273. 

ASSAULT, 

defined,  54,  274. 

ability  and  intent  to  injure,  55. 

ASSAULT  AND  BATTERY, 
See  Battery. 
in  general,  54-61,  275. 
justification  for,  59,  277. 

ASSAULT  WITH  INTENT,  276. 

ASSIGNMENT  OP  DOWER,  383. 

ASSIGNOR  OF  NEGOTIABLE  INSTRUMENT,  481. 

ATTACHMENT,  685,  686. 

ATTEMPTS  TO  COMMIT  CRIME,  248. 

ATTORNEY, 

fraud  of,  109. 
contingent  fees  of,  279. 
at  law  and  in  fact,  526. 
in  fact,  deed  by,  532. 

AUCTIONEER,  526. 


B 


BAIL,  700. 


BAILMENT, 

for  benefit  of  bailor,  bailee  or  both,  501, 

degree  of  care  required,  501. 

common  carrier,  501. 

Innkeeper,  501. 

mechanic  or  artisan,  501. 

warehouseman,  501. 

pawnbroker,  501. 

BARRATRY,  279. 


INDEX  457 

[References  are  to   Sections] 
BASE  FEE,  378. 
BASE  TENURE,  348. 

BATTERY, 

defined,  56,  275. 
intent  of  wrongdoer,  57. 
consent  of  injured,  58. 
justification  for,  59,  277. 
self-defense,  60. 
remedies  for,  61. 

BELLIGERENTS, 

rights  and  dulies  of,  628. 

BEQUEST, 

title  by,  417. 

BESTIALITY,  27L 

BIGAMY,  280. 

BILL  OP  ATTAINDER, 
defined,  598. 

BILL  OF  EXCHANGE, 
defined,  471. 
foreign,  474. 
inland,  474. 
parties  to,  475. 
acceptance  of,  477. 
signatures,  479. 

BILL  OF  LADING, 

negotiability,  487. 

BILLS  AND  NOTES, 

See  B11.L  OF  Exchange;  Bill  of  Lading;  Negotiabik  Instru- 
ments. 

BODIES  OF  DEAD,  418 

BOUNDARY  LINES, 

along  highways,  213.* 
along  streams,  315. 
in  general,  318. 

BOYCOTTING, 

legality,  237. 


458  INDEX 


[References  are  to   Sections] 

BREACH  OF  CONTRACT, 

tort  distinguished  from,  48. 
remedy,  48,  460. 

BRIBERY,  281. 

BROKER,  526. 

BUSINESS  RELATIONS, 

protection  by  law,  230. 

Interference  with,  233-240. 

Intentional  injuries  to  as  constituting  a  tort,  235. 

competition  as  justification  for  injuries  to  employer,  236. 

legality  of  boycotting,  237. 

combinations  and  conspiracies,  238. 

remedy  for  unlawful  interference,  240. 

BURDEN  OF  PROOF,  675. 

BURIAL  RIGHTS,  418. 

BURGLARY,  282. 

C 

CAPACITY, 

to  commit  crime,  243. 
parties  to  contract,  441-449. 

CAPIAS,  688. 

CAPITAL   PUNISHMENT, 
right  to  inflict,  9. 

CARELESSNESS, 
criminal,  251. 

CERTAINTY, 

as  element  in  settling  dispute,  39. 

necessary  element  in  administration  of  justice,  40. 

when  more  important  than  justice,  41. 

CERTIORARI,  624. 

CHALLENGE  TO  JURY,  708. 

CHAMPERTY,  279. 

CHARACTER, 

evidence  of  in  criminal  cases,  711. 


INDEX  459 

[References  are   to  Sections] 

CHARTER, 

corporate,  517. 

repeal  of  corporate  charter,  521. 

CHEATING  BY  FALSE  PRETENSES,  286. 

CHECKS, 

as  bills  of  exchange,  487. 

CHILD, 

See  Parent  and  Child. 

CICERO, 

definition  of  law,  1. 

CIRCUIT  COURTS  OF  APPEALS, 
jurisdiction,  638. 

CIRCUIT  COURTS  OF  THE  UNITED  STATES, 
merged  with  district  courts,  639. 

CITIZENSHIP, 

of  corporations,  121. 

defined,  592. 

two  kinds  in  United  States,  592. 

rights  of,  how  guarded,  592. 

how  acquired,  592. 

jurisdiction  of  United  States  courts,  when  dependent  on,  634. 

CIVIL  CODE  IN  LOUISIANA,  18. 

CIVIL  PROCEDURE, 
civil  actions,  656. 
officers  of  court,  656. 
actions,  how  commenced,  657. 
parties  to  actions,  657. 
process,  658. 

service  and  return  of  process,  659. 
matters  of  defense,  660. 
objections  to  jurisdiction,  661. 
answers  or  pleas  in  abatement,  662. 
issues  of  fact  and  of  law,  663. 
jury,  664. 
trial,  665. 
evidence,  666. 

functions  of  court  and  jury,  667. 
judicial  notice,  668. 


460  INDEX 

[References   arc   to   Sections] 

CIVIL  PROCEDURE— Continued, 
presumptions,  668. 
written  and  oral  evidence,  669. 
attendance  of  witnesses,  670. 
competency  of  witnesses,  671. 
hearsay  evidence,  672. 
exceptions  to  rule  excluding  hearsay,  673. 
examination  of  witnesses,  674. 
burden  of  proof,  675. 
arguments  and  instructions,  676. 
deliberations  of  jury,  677. 
verdict,  677. 

motion  to  set  aside  verdict,  678. 
motion  for  new  trial,  678. 
motion  in  arrest  of  judgment,  679. 
forms  of  judgment,  680. 
appeals  and  writs  of  error,  681. 
execution,  682. 

CLERGYMEN, 

frauds  of,  109. 

CLERK  OF  COURT,  656. 

CODICIL,  403. 

COMBINATIONS, 
legality,  238. 

COMMERCE, 

See  Interstate  Commerce. 

COMMISSION  MERCHANT,  526. 

COMMON, 

estates  in,  394. 

COMMON  CARRIER, 

duty  as  to  care  of  goods,  501. 
who  is  a  common  carrier,  501,  502. 
duty  as  to  passengers,  502. 
not  insurers  as  to  passengers,  502. 
may  make  and  enforce  rules,  502. 
act  of  God,  502. 

COMMON  LAW, 
defined,  18. 
where  found,  18. 


INDEX  461 


[References  are   to   Sections] 

COMMON   LAW— Continued, 
sources  of,  20. 
growth  of,  21. 

law  merchant,  a  part  of,  21. 
of  United  States,  22. 
yields  to  statutes,  28. 

COMMON  RECOVERIES,  380. 

COMMON, 

right  of,  324. 

COMPENSATORY  DAMAGES, 
application  of  remedy,  15. 

COMPENSATORY  PROCEEDINGS, 
defined,  15. 

COMPETITION, 

as  justification  for  injuries  to  competitor,  236. 
legality  of  boycotting,  237. 

COMPOUNDING  CRIMES,  247. 

CONDITIONAL  FEE,  379. 

CONDITION, 

estates  upon,  384. 
implied,  385. 
expressed,  386. 

CONDITIONS, 

when  equity  will  relieve  against  forfeiture  for  breach  of,  387. 

CONDITIONS  PRECEDENT,  387. 

CONDITIONS  SUBSEQUENT,  387. 

CONDUCT, 

necessity  of  basis  of  regulating,  37. 
requisites  of  basis  of  regulating,  38,  39. 

CONFESSIONS,  712. 

CONFIDENTIAL  RELATIONS, 

presumption  as  to  undue  influence  in  contracts,  438. 

CONFLICT  OF  LAWS, 

constitutional  provisions,  610. 


462  INDEX 

[References  are  to   Sections] 

CONFUSION, 

title  by,  417. 

CONSENT, 

to  taking  life,  50. 

to  assault  and  battery,  58. 

to  abortion,  no  defense,  264. 

in  rape,  268. 

meeting  of  minds  in  contracts,  436-438. 

CONSIDERATION, 
defined,  450. 
good  and  valuable,  450. 
moral  obligation,  450. 
adequacy,  451. 
prior  obligation,  452. 
part  payment  as,  452. 
mutual  releases  by  creditors,  453. 
disputed  claims,  454. 
impossible,  455. 
legal  and  illegal,  455,  458. 
executed  and  executory,  456. 
past,  457. 

failure  and  want  of,  458. 
of  promissory  notes,  485. 

CONSPIRACY, 

in  competition,  legality,  238. 
to  prevent  labor,  239. 
civil  remedies  for,  240. 
criminal,  287,  288. 

CONSTITUTION  OF  UNITED  STATES, 
power  of  supreme  court,  587. 

CONSTITUTIONAL  LAW, 
in  general,  585-590. 

definition,  586.  _-g 

American  doctrine  contrasted  with  European  practice,  588. 

divisions  of  subject,  589. 
separation  of  powers,  590. 

CONSTITUTIONAL  RIGHTS, 
fundamental  rights,  591. 

CONSTITUTIONS, 

fundamental   law,  1. 


INDEX  463 


[References  are  to  Sections] 

CONSTITUTIONS— Continued. 

what  they  are,  how  made  and  amended,  24. 

definition,  586. 

jurisdiction  of  cases  involving,  637. 

CONSTRUCTION, 

function  of  construction,  2. 
effect  of  contemporaneous,  28. 
of  criminal  statutes,  244. 

CONTEMPT,  683,  684. 

methods  enforcing  judgments,  15. 

CONTINGENT  FEES  OF  ATTORNEYS,  279. 
CONTINGENT  REMAINDER,  388. 
CONTINUANCE  IN  CRIMINAL  CASES,  704. 

CONTRACTS. 

contract  and  status,  424. 
growth  of  right  to  contract,  424. 
definition,  425. 
executed  and  executory,  426. 
written,  427. 
parol,  428. 
express,  429. 
implied  contract,  430. 
quasi  contract,  431. 
of  record,  432. 
time  of  contract,  434. 
meeting  of  minds,  436 
duress,  438. 

illegal  in  whole  or  part,  439. 
impossible,  439. 
void  and  voidable,  439. 
,       interpretation  of,  440. 
capacity  of  parties,  441. 
parties,  442. 
of  state,  442. 
of  insane,  442,  447. 
of  aliens,  442. 
of  infants,  443-445. 
for  necessaries  by  infant,  444. 
executed,  of  infant,  444. 
ratification  of,  by  infant,  445. 


464  INDEX 

[References  are  to   Sections} 

CONTRACTS— Continued. 

disaffirmance  of,  by  infant,  445. 

fraud  of  infants,  446. 

of  guardians,  447. 

drunkenness  as  affecting  contracts,  448. 

of  married  woman,  449. 

consideration,  450-458. 

discharge,  459. 

remedy  for  breach,  460. 

statute  of  frauds,  461-470,  499. 

bills  of  exchange,  471-479. 

promissory  notes,  471-486. 

bills  of  lading,  487. 

insurance,  488-495. 

of  sale  and  exchange,  496-498,  500. 

warranty,  497. 

specific  performance  of,  when  not  enforced,  497. 

transfer  of  title,  498. 

delivery,  500. 

bailment,  501. 

of  common  carriers,  502. 

of  partnership,  503-506,  508-512. 

of  corporations,  518. 

by  agents,  526. 

by  ship's  husband,  527. 

by  ship's  master,  527. 

authority  of  agent,  527,  528. 

acts  in  excess  of  authority,  528. 

private  instructions  to  agent,  528. 

ambiguous  authority  of  agent,  52a. 

declarations  of  agents,  528. 

when  authority  ceases,  530. 

CONTRACTUAL  DUTIES, 

damages  for  interference,  233. 

CONVENTIONAL  LAW  OF  NATIONS,  626. 

COPYRIGHTS,  188. 

CORPORATIONS, 

definition,  513. 

public,  513. 

private,  513. 

quasi  corporations,  513. 


INDEX  465 

\  References  are  to  Sections] 

CORPORATIONS— Continued. 

joint  stock  companies,  513. 

distinguished  from  partnership,  514. 

powers  of,  515. 

organization  of,  516. 

persons,  516. 

doing  business  in  other  states,  516. 

charter  of,  517. 

contracts  of,  518. 

rights  of  stockholders,  519. 

dissolution  of,  520. 

vested  rights  of,  521. 

deeds  by,  522. 

frauds  of,  52G. 

CORPOREAL  PROPERTY, 
defined,  309. 

COUNSEL, 

arguments  of,  676,  713. 

prisoner's  right  to  be  heard  by,  702. 

opening  statements,  709. 

COURT  OF  CUSTOMS  APPEALS, 
jurisdiction,  631,  640. 

COURTS, 

See  Court  of  Customs  Appeals;   Courts  of  Justice;   Courts 
OF  Law;   Equity  and  Proceedings  in  Equity;   Precedents. 
duty  to  determine  legal  rights  and  duties,  15. 
under  feudal  system,  336. 
in  England  and  United  States,  588. 
modern,  629-645,  656-682. 
jurisdiction  defined,  630. 
federal,  631-643. 
senate  as  a  court,  632. 
judicial  circuits  and  districts,  633. 
judicial  power  of  United  States,  634. 
exclusive  jurisdiction  of,  635. 
concurrent  with  state  courts,  636. 
jurisdiction  of  supreme  court,  637. 
jurisdiction  of  circuit  courts  of  appeals.  638. 
jurisdiction  of  circuit  courts,  639. 
jurisdiction  of  district  courts,  639. 
jurisdiction  of  court  of  claims,  641. 
30 — Elem.  Law. 


466  iNDUx 

[References  are  to  Sections] 

COURTS— Continued. 

United  States  commissioner,  642. 

territorial  courts,  643. 

courts  of  District  of  Columbia,  643. 

state  courts,  644,  645. 

jurisdiction  of  state  courts,  645. 

officers  of,  656. 

procedure  of  in  civil  cases,  656-682. 

procedure  in  criminal  cases,  692-715. 

COURTS  OF  JUSTICE, 

versus  courts  of  law,  40. 

COURTS  OF  LAW, 

courts  of  justice  versus  courts  of  law,  40. 

CREDITORS, 

rights  under  feudal  law,  342. 

of  decedent,  422. 

of  partnership,  509. 

of  individual  partners,  509. 

CRIME, 

defined,  47,  242. 

torts  distinguished  from  crimes,  47. 

various  crimes  defined,  263-304. 

CRIMINAL  LAW, 
defined,  241. 

crimes  in  United  States,  242. 
capacity  to  commit,  243. 
statutes,  how  construed,  244. 
infamous  crimes,  245. 
classification  of,  246. 
compounding,  247. 
attempts,  248. 

aiding,  counseling,  etc.,  249. 
intent  and  overt  act,  250. 
criminal  carelessness,  251. 
Ignorance  and  mistake  of  fact,  252. 
ignorance  of  law,  253. 
self-defense,  254. 
offenses  by  wives,  255. 
principal  and  agent,  256. 
principal  and  accessory,  257. 
drunkenness,  258. 


INDEX  467 


[References  are  to  Sections] 

CRIMINAL  LAW— Continued, 
insanity,  259. 
punishment,  260. 
jurisdiction  in,  261,  262. 
definitions  of  various  crimes,  263-304. 
jurisdiction  of  sovereigns  and  ambassadors,  626. 

CRIMINAL  OFFENSES, 
abortion,  264. 

adultery,  265.  * 

fornication,  266. 
incest,  267. 
rape,  268. 
seduction,  269. 

abduction  and  kidnaping,  270. 
bestiality,  271. 
sodomy,  271. 
affray,  272. 
arson,  273. 
assault,  274. 

assault  and  battery,  275. 
assault  with  intent,  276. 
false  imprisonment,  278. 
barratry,  279. 
champerty,  279. 
maintenance,  279. 
bigamy,  280. 
polygamy,  280. 
bribery,  281. 
burglary,  282. 
robbery,  283. 
embezzlement,  284. 
larceny,  285. 
cheating,  286. 
false  pretenses,  286. 
conspiracy,  287. 
dueling,  289. 
extortion,  290. 
forgery,  291. 
homicide,  292. 

manslaughter,  voluntary,  293. 
manslaughter,  involuntary,  294, 
libel,  297. 
malicious  trespass,  298. 


468  INDEX 


[References  are  to  Sections^ 

CRIMINAL  OFFENSES— Continued, 
malicious  mischief,  298. 
mayhem,  299. 
nuisance,  300. 
perjury,  301. 
piracy,  302. 
riot,  303. 
treason,  304. 
misprision   of  treason,   304. 

CRIMINAL  PROCEDURE, 
described,  692-715. 

CURTESY, 

tenant  by,  381. 

CUSTOM, 

See  Peecedent. 

as  legal  sources  of  law,  19,  31. 

can  establish  law  where  none  existed,  29. 

as  part  of  common  law,  30. 

origin  and  nature,  30. 

particular  distinguished  from  general,  31. 

decreasing  importance  of  as  legal  source,  32. 

force  of  particular,  33. 

definition  and  kinds  of,  33. 

different  from  usage,  33. 

requisites  of,  33. 

D 
DAMAGES, 

See  Business  Relations;  Compensatory  Damages;  Contract- 
ual Duties;    Mabital  Duties;   Punitive  Damages. 
for  injuries  causing  death,  53. 
for  assault  and  battery,  61. 
for  false  imprisonment,  SS. 
for  malicious  prosecution,  77. 
special,  in  defamation,  85,  104. 
for  libel  and  slander,  104. 
contemptuous,  104. 
compensatory,  104. 
exemplary,  104. 
general,  104. 
special,  104. 
aggravation  of,  104. 


INDKX  469 

[References  are  to   Sections] 

DAMAGES— Continued, 
mitigation  of,  104. 
for  fraud,  130. 
for  nuisance,  151. 
for  negligence,  168. 
for  infringing  trade-marks,  191. 
for  wrongs  to  personal  property,  201. 
for  wrongs  to  real  property,  211. 
enticing  away  servant,  231. 
seduction  of  servant  or  daughter,  231. 
Interference  with  domestic  or  business  relations,  240. 

DAY,  373. 

DAYS  OF  GRACE,  373. 

DEATH, 

recovery  for  injuries  causing,  53. 

DEBTS, 

effect  of  war  upon,  628. 

DECEDENTS'  ESTATES,  419-422. 

DECEIT, 

in  general,  105-131. 

DEDICATION, 

of  right  of  way,  325. 

statutory  and  common  law,  325 

DEED, 

quitclaim,  405. 

warranty,  405. 

special  warranty,  405. 

how  executed,  405,  410. 

delivery  of,  405. 

title,  bond  for,  405,  406. 

by  owners  not  in  possession,  407. 

forms  of,  408. 

recording  of,  409. 

capacity  of  parties,  410. 

by  officers,  411. 

description  of  land  in,  412. 

of  partners,  507. 

of  corporations,  522. 

by  attorney  in  fact,  532. 

of  guardians,  579. 


470  INDEX 

[References  are  to  Sections] 

DEFAMATION, 

in  general,  78-104. 

defined,  78. 

when  words  considered  defamatory,  85. 

liability  of  author  for  publication,  89. 

DEFECTS, 

law,  44. 

DEFINITION, 

accord  and  satisfaction,  690. 

administration  of  justice,  15. 

administrative  law,  611. 

assault,  54. 

assignor,  481. 

battery,  56. 

bill  of  attainder,  598. 

bill  of  exchange,  471. 

citizenship,  592. 

civil  arrest,  69. 

codicil,  403. 

consideration,  450. 

constitution,  586. 

constitutional  law,  586. 

crime,  47,  242. 

criminal  law,  241. 

criminal  offenses,  264-304. 

declaratory  precedent,  35. 

deeds,  405. 

defamation,  78. 

estate  in  remainder,  388. 

ex  post  facto  law,  598. 

false  imprisonment,  62. 

general  custom,  31. 

habeas  corpus,  11. 

homicide,  292. 

incorporeal  hereditaments,  184. 

Insurance  contract,  488. 

International  law,  625. 

kinds  of  property,  309,  416. 

law,  1,  2. 

liberty,  4. 

marriage,  556. 

negligence,  156. 

nuisance,  133. 


INDEX  471 

[References  are  to   Sections] 

DEFINITION— Continued. 

offer  and  acceptance,  433. 

original  precedents,  35. 

parol  contract,  428. 

partnership,  503.  ^ 

police  power,  600. 

power,  5. 

precedent,  34. 

private  law,  585. 

promissory  note,  471. 

proximate  cause,  171. 

public  law,  585. 

purpresture,   145. 

quasi  corporation,  513. 

surety,  481. 

tenement,  314. 

title  bond,  405. 

tort,  46,  47. 

underwriter,  488. 

undue  influence,  438. 

DELIVERY, 

escrow,  405. 

when  essential  to  pass  title,  500. 

of  part,  500. 

to  agent  or  carrier,  500. 

symbolical,  500. 

place  of,  500. 

DEPENDENCIES, 

constitutional  provisions  concerning  control,  605.  ■ 

DEPOSITIONS,  669. 

DESCENT, 

what  law  governs,  400. 
title  by,  400. 
statutes  of,  420. 

DESCRIPTION, 

of  land  in  deed,  412. 

Implied  warranty  in  sale  by  description,  497. 

DEVISE, 

executory,  390. 
title  by,  401. 


472  INDEX 

[References  are   to   Sections ^ 

DEVISEE. 

right  to  enter,  422> 

DISCHARGE  OF  CONTRACTS, 
manner,  459. 

DISTRESS,  374. 

DISTRICT  COURTS  OF  UNITED  STATES, 
jurisdiction,  639. 

DIVORCE,  561. 

DOMESDAY  BOOK,  340. 

DOMESTIC  RELATIONS, 

interference  with,  230-232. 

remedy  for  unlawful  interference,  240. 

law,  553-584. 

DOMICILE  OF  INTESTATE, 

law  of,  fixes  rule  of  distribution,  19,  400. 

DOWER, 

estate  of,  382. 

at  common  law,  382. 

how  barred,  382. 

assignment  of,  383. 

In  lands  sold  by  husband,  410. 

DRAWEE  OF  BILL  OF  EXCHANGE,  475. 

DRAWER  OF  BILL  OF  EXCHANGE,  475. 

DRUNKENNESS, 

in  frauds,  110. 

in  negligence,  163. 

in  crimes,  258. 

as  affecting  contracts,  448, 

DUELING,  289. 

DURESS, 

as  affecting  negligence,  162. 
defined,  438. 
contracts  under,  438. 


INDEX  473 

[References  are  to  Sections] 


DUTIES, 


See   Contractual   Duties;    Legal   Duties;    Marital   Duths; 
Moral  Duties. 

DYING  DECLARATIONS,  673,  712. 

E 

EASEMENTS, 

defined,  328. 
how  acquired,  328. 
how  lost,  328. 
license  is  not,  328. 

EMBEZZLEMENT,  284. 

EMBLEMENTS,  368,  371. 

EMANCIPATION  OF  INFANT,  443,  566. 

EMINENT  DOMAIN, 
title  by,  413. 
"basis  of,  413. 
who  may  obtain,  413. 
proceedings  to  acquire,  413. 
may  be  without  jury,  413. 
compensation  must  be  made  to  owner,  413. 
statute  for  acquiring  must  be  followed  strictly,  413. 
proceedings  not  suits  at  common  law,  413. 
constitutional  provisions,  602. 

ENFORCEMENT, 

See  Specific  Enforcement. 

ENTIRETY, 

estate  by,  393. 

EQUITY  AND  PROCEEDINGS  IN  EQUITY, 

authority  of  equity  courts  in  England,  40. 

remedy  for  relief  of  minority  stockholders,  519. 

equity  jurisdiction,  646. 

prohibitory  injunction,  647. 

mandatory  injunction,  647. 

general  scope  of  equity  jurisdiction,  648. 

full  relief,  649. 

suit  in  equity — pleadings,  650. 

evidence  in  equity,  651. 


474  INDEX 

[References  are  to   Sections] 

EQUITY  AND  PROCEEDINGS  IN  EQUITY— Continued, 
hearing  in  equity,  651. 
decree  in  equity,  651. 
bill  of  review,  651. 

ESCHEAT, 

defined,  357. 
title  by,  414. 

ESCROW,  405. 

ESCUAGE,  341. 

ESTATES, 

See  Modern  Estates. 

allodial,  334. 

defined,  362. 

fee-simple,  363. 

fee  in  abeyance,  364. 

for  life,  366-370. 

for  years,  371. 

at  will,  376. 

at  sufferance,  377. 

base  fee,  378. 

conditional  fee,  379. 

in  tail,  380. 

by  curtesy,  381. 

in  dower,  382,  383. 

upon  condition,  384-387. 

implied,  385. 

expressed,  386. 

in  remainder,  388. 

rule  in  Shelley's  Case,  389. 

executory  devises,  390. 

in  reversion,  391. 

in  severalty,  392. 

in  joint  tenancy,  393. 

by  the  entirety,  393. 

in  common,  394. 

of  decedents,  419. 

ESTOPPEL,  130. 

EVIDENCE, 

declarations  of  agents,  528. 


INDEX  475 

[References  are  to   Sections] 

EVIDENCE— Continued. 

constitutional  provision  forbidding  person  to  give  incriminat- 
ing evidence  against  himself,  598. 
in  equity  cases,  651. 

when  court  may  order  stricken  from  record,  666. 
conclusive,  defined,  666. 
prima  facie,  defined,  666. 
tending  to  prove,  defined,  666. 
competent,  defined,  666. 
sufficient,  defined,  666. 
corroborative,  defined,  666. 
cumulative,  defined,  666. 
relevant,  defined,  666. 
admissible,  defined,  666. 
proper,  defined,  666. 
material,  defined,  666. 
direct,  defined,  666. 
circumstantial,  defined,  666. 
functions  of  court  and  jury,  667. 
judicial  notice,  668. 
presumptions,  668.  ' 

written  and  oral,  669. 
attendance  of  witnesses,  670. 
competency  of  witnesses,  671. 
privileged   communications,   671. 
hearsay,  672,  673. 
admissions,  673. 
dying  declarations,  673,  712. 
examination  of  witnesses,  674. 
burden  of  proof,  675. 
preponderance  of,  defined,  675. 
rules  of,  in  criminal  cases,  711.  712. 
confessions,  712. 
special  rules  of,  712. 
accomplice,  evidence  of,  712. 
character,  evidence  of,  712. 

EXAMINATION, 

preliminary,  700. 
of  witnesses,  710. 

EXECUTED  CONTRACT  OF  INFANT,  444. 


476  INDEX 

[References  are  to  Sections] 

EXECUTION, 
civil,  682, 
criminal,  715. 

EXECUTIVE, 

duties  of,  614. 
liability  of,  614. 

EXECUTORS, 

appointment  of,  etc.,  422. 

promises  under  statute  of  frauds,  463. 

EXECUTORY  CONTRACTS,  426. 

EXECUTORY  DEVISES,  390. 

EXPATRIATION, 
right  of,  601. 

EX  POST  FACTO  LAW, 
defined,  598.  ' 

EXPRESS  CONTRACT,  429. 

EXPRESS  WARRANTY, 
defined,  497. 

EXTORTION,  290. 

EXTRADITION,  609,  699. 

EXTRAORDINARY  REMEDIES  AND  SPECIAL  PROCEEDINGS, 
mandamus,  616,  617. 
quo  warranto,  618,  619. 
prohibition,  620. 
habeas  corpus,  621-623. 
certiorari,  624. 
contempt,  683,  684. 
attachment,  685,  686. 
garnishment,  687. 
capias,  688. 
arbitration,  689. 
accord  and  satisfaction,  690. 
partition,  691. 


INDEX  477 

[References  are   to   Sections^ 

P 
FACTOR,  526. 

FALSE  IMPRISONMENT, 
defined,  62. 

detention  or  restraint,  63. 
unlawfulness,  64. 
restraint  without  process,  65. 
restraint  under  legal  process,  66. 
restraint  by  officers,  67. 
remedies,  68. 

privilege  from  arrest,  69,  70. 
criminal,  278. 

FALSE  PRETENSES, 
cheating  by,  286. 

FEDERAL  COURTS, 

jurisdiction  and  procedure  of,  631-643. 

FEDERAL  GOVERNMENT, 
in  general,  604-710. 
powers  contrasted  with  those  of  state  government,  604. 

FEE  SIMPLE, 

estate,  362,  363. 
in  abeyance,  364. 

FEE, 

base,  378. 
conditional,  379. 
tail,  380. 

FELLOW  SERVANTS, 
defined,  550. 

FEUDAL  SYSTEM, 

in  general,  333-357. 
origin  and  nature,  333- 
fiefs  and  feuds,  333,  342. 
abolition  of,  343. 

FINES,  356. 

FIXTURES, 

as  between  landlord  and  tenant,  317. 
as  between  vendor  and  vendee,  317. 


478  INDIvX 

[References  are  to   Sections^ 

FIXTURES— Continued. 

as  between  heir  and  executor,  317. 
requisites  of,  317. 

FORCE, 

damages  where  used  to  interfere  with  business  relations,  234. 

FOREIGN  BILLS  OF  EXCHANGE,  474. 

FOREIGN  CORPORATIONS, 

state's  right  to  refuse  permission  to  do  business,  516. 

FORFEITURE, 

relief  against,  387. 

FORGERY,  291. 

FORNICATION,  266. 

FRANCHISES,  330. 

FRANK  TENEMENT,  349. 

FRAUD, 

statutes  against,  liberally  construed,  28. 

in  general,  105-131. 

kinds  of,  105. 

in  confidential  relations,  106,  563. 

illegal  sexual  relations,  107. 

by  trustees,  108. 

attorneys,  109. 

physicians,  109. 

clergymen,  109. 

persons  of  weak  mind,  110. 

between  equals.  111. 

fraud  defined,  112. 

by  silence,  113. 

equal  opportunities,  114. 

elements  of  fraud,  115. 

representations  and  warranty,  116. 

clearness  and  certainty,  117. 

matters  of  law,  118. 

opinions,  119. 

matters  of  fact,  120. 

promises,  121. 

materiality,  122. 

falsity,  123. 


INDEX  479 

[References  are  to  Sectionsf^ 

FRAUD— Continued. 

"Wrongdoer's  knowledge,  124. 

wrongdoer's  intent,  125. 

who  entitled  to  rely,  126. 

representations  must  be  acted  upon,  127. 

injured  person's  belief,  128. 

damages,  129. 

remedies  for  fraud,  130. 

personal  injuries  through,  131. 

effect  on  contract,  437. 

of  infant,  446. 

in  insurance  contracts,  491. 

in  sales  of  personal  property,  497. 

partners,  506. 

by  corporations,  523. 

principal  and  agent,  530. 

parties  engaged  to  marry,  555. 

husband  and  wife,  563. 

parent  and  child,  568. 

FRAUDS,  STATUTE  OF, 
history  of,  461. 
provisions  of,  462. 

promises  of  executors  and  administrators,  463. 
debt,  default  and  miscarriage  defined,  464. 
collateral  obligation,  465. 

agreements  in  consideration  of  marriage,  466. 
contracts  for  sales  of  lands,  467. 
agreements  not  to  be  performed  within  a  year,  468. 
note  or  memorandum,  469. 
signature  to  memorandum,  470. 
sale  of  goods,  499. 

FREE  SOCAGE,  349. 

FREE  TENURE,  348. 

FREEDOM, 

of  speech,  594. 
of  press,  594. 
religious,  597. 

FUNDAMENTAL  RIGHTS, 
enumerated,  591-603. 


480  INDfiX 


[References  are   to   Sections] 

Q 

GARNISHMENT,  687. 

GIFT, 

title  by,  417. 

GOODS, 

sale  under  statute  of  frauds,  499. 

GOOD  WILL,  512,  191. 

GUARANTOR, 

defined,  481. 

GUARDIAN  AND  WARD, 

when  presumption  as  to  undue  influence  in  execution  of  con- 
tract will  arise,  438. 
who  is  guardian,  575. 
different  kinds  of,  575. 
natural,  576. 
testamentary,  577. 
legal — rights  and  duties  of,  578. 
deeds  of,  579. 
guardian  ad  litem,  580. 
next  friend,  581. 

rights  of  guardian  and  ward  in  each  other,  582. 
wrongs  between  guardian  and  ward,  583. 
guardian  of  insane  person,  584. 

GUARDIAN  OF  INSANE,  584. 
contract  of,  447. 

GUARDIAN'S  DEED,  579. 

H 

HABEAS  CORPUS,  621-623. 
definition,  11. 
constitutional  provisions,  11. 

HAWAII, 

when  appeals  lie  from  the  Supreme  Court,  637. 

HEALTH, 

right  to,  12. 

HEARSAY  EVIDENCE,  672,  673. 
dying  declarations,  673,  712. 


INDEX  48J 

[References  are  to   Sections] 

HEIRS, 

use  of  word  in  deeds  and  wills,  365. 

HEREDITAMENTS, 

incorporeal,  184,  321. 

HIGHWAYS, 

obstruction  of,  143. 
what  is  a  highway,  144. 
purprestures,  145. 
what  is  an  obstruction,  146. 
duration  of  obstruction,  147. 
objects  near  highway,  148. 
authorized  obstruction,  149. 
lands  bounded  by,  319. 
dedication  of,  325. 

HISTORICAL  SOURCES, 
law,  19. 

HOLDER  OF  BILL  OR  NOTE,  476. 
duty  of,  477. 

HOLIDAY, 

legal,  373. 

HOMAGE,  337. 

HOMICIDE, 

murder  in  first  degree,  292. 

murder  in  second  degree,  292. 

voluntary  manslaughter,  293. 

involuntary  manslaughter,  '^9^. 

justifiable,  295. 

malice,  296. 

dying  declarations,  673,  712. 

HUSBAND  AND  WIFE, 

damages  where  marital  duties  interfered  with,  232. 
crimes,  255. 
polygamy,  280. 
antenuptial  agreements,  382. 
dower,  382. 

assignment  of  dower,  383. 

where  presumption  as  to  undue  influence  in  execution  of  con- 
tract will  arise,  438. 
marriage,  556-559. 
31 — Ekm.  Law. 


482  INDEX 


[References  are  to   Sections] 


HUSBAND    AND   WIFE— Continued, 
duties  and  rights  of,  560. 
divorce,  561. 
injuries  between,  562. 
frauds,  563. 
injuries  by  third  persons,  564. 


IGNORANCE, 

of  law,  118,  253. 
of  fact,  120,  252. 

ILLEGAL  CONTRACT,  439. 

ILLEGITIMATE  CHILDREN, 
inheritance  by,  400. 
who  are,  565. 

IMPANELING  JURY,  708. 

IMPLICATION, 

repeal  by,  28. 

IMPLIED  CONTRACTS,   430. 

IMPLIED  LICENSE,  216. 

IMPLIED  REVOCATION  OF  WILLS.  404. 

IMPLIED  WARRANTY, 

in  sale  by  description,  497. 

IMPOSSIBLE  CONTRACTS.  43S. 

IMPRISONMENT, 

See  False  Imprisonment. 

INADEQUACY  OF  CONSIDERATION.  451. 
INCEST.  267. 

INCORPOREAL  PROPERTY, 

definitions,  184.  185.  309,  321. 
wrongs  to,  184-191. 
statutory  provisions.  186. 
patents.  187. 
copyrights.  188. 
literary  property,  189. 


INDEX  483 


[References  are  to  Sections] 

INCORPOREAL  PROPERTY— Continued, 
private  letters,  190. 
trade-marks,  191. 
kinds,  321. 
advowsons,  322. 
tithes,  323. 

right  of  common,  324. 
right  of  way,  325-327. 
easements,  328. 
offices  and  dignities,  329. 
franchises,  330. 
rents,  331. 
liens,  332. 

INCREASE, 

title  by,  417. 

INDIANS, 

titles  of,  313. 

INDICT  I\IENT, 

pleas  to,  706. 

INDICTMENT  AND  INFORMATION,  705. 

INDORSEMENT 

in  general,  ^76. 
special,  478. 
in  blank,  478. 

INDORSER, 

defined,  481. 

INFAMOUS  CRIME,  245. 

INFANCY, 

See  Infants. 

a  personal  privilege,  444. 

INFANTS, 

recovery  for  death  of,  53. 
negligence  of,  164,  182. 
capacity  to  commit  crime,  243. 
contracts  of,  442,  443. 
emancipation  of.  443,  566. 
frauds  of,  446,  568. 
parent  and  child,  565-574. 


484  INDEX 

[References  are  to   Sections] 

INFANTS— Continued, 
frauds  upon,  568. 
guardian  and  ward,  575-584. 
suits  by,  578-581. 

INFLUENCE, 

Sec  Undue  Influence. 

INJUNCTION, 

example  of  legal  remedy,  15. 

against  defamation,  103. 

frauds,  130. 

nuisance,  151. 

patents.  187. 

copyrights,  188. 

trade-marks  and  trade-names,  191. 

personal  property,  201. 

real  property,  211. 

against  unlawful  combinations,  240. 

when  granted,  647. 

prohibitory,  647. 

mandatory,  647. 

temporary,  647. 

perpetual,  647. 

INJURY, 

intentional,  to  business  relations,  as  tort,  Z'd6. 

INLAND  BILLS  OF  EXCHANGE,  474. 

INSANE, 

frauds  against,  110. 
negligence  of,  162,  178. 
crimes  of,  259. 
contracts  of,  447. 
guardian  of,  584. 

INSTRUCTIONS,  676. 

INSURANCE, 

contract  of,  definition,  488. 
parties,  488. 
may  be  by  parol,  488. 
what  may  be  insured,  488. 
form  of  contract,  .489. 
interpretation  of,  490. 


INDEX  485 


[References  are  to  Sections] 

INSURANCE— Continued. 

warranty  and  representation  distinguished,  491. 

fraud  in,  491. 

premium,  payment  of,  492. 

waiver  of  payment  of  premium,  493. 

insurable  interest,  494. 

increase  of  risk,  495. 

INTENT, 

in  assault  and  battery,  55,  57. 

in  malicious  prosecution,  72. 

in  defamation,  92. 

in  fraud,  125. 

in  nuisance,  135. 

in  negligence,  157. 

in  crimes,  250. 

INTERFERENCE, 

domestic  or  business  relations,  230-240. 

INTERNATIONAL  LAW, 
defined,  625. 
origin  of,  625. 
how  enforced,  625. 
conventional  law  of  nations,  626. 
rights  of  neutrals,  627. 
rights  of  belligerents,  628. 

INTERPLEADER,  501,  648. 

INTERPRETATION, 

what  is  and  office  of,  28. 

rules  of,  28. 

of  penal  statutes,  28. 

of  remedial  statutes,  28. 

of  statutes  in  pari  materia,  28, 

of  statutes  against  frauds,  28. 

of  statutes  in  derogation  of  common  law,  28. 

technical  words,  28. 

preamble  and  title,  when  considered,  28, 

effect  of  contemporaneous,  28. 

proviso,  how  regarded,  28. 

of  libel  and  slander,  90. 

of  contracts,  440. 

of  insurance  contracts,  490. 


486  INDEX 

[References  arc   to   iiections] 

INTERSTATE  COMMEIICE, 

congressional  regulation,  606. 
state  regulation,  607. 

INTERSTATE  LAW,  400. 

INTERSTATE  RELATIONS, 

'  constitutional  provision  concerning,  609. 

INTESTATE  AND  TESTATOR,  419. 

domicile,  law  of,  as  to  property,  42C. 

ISLANDS, 

ownership  of,  315,  316. 

ISSUES  OF  FACT  OR  LAW,  663. 


JOINT  TENANCY,  393. 

JUDGMENT, 

in  malicious  prosecutions,  73,  74. 

title  by,  417. 

arrest  of,  679. 

notwithstanding  verdict,  679. 

forms  of,  680. 

by  confession,  680. 

by  default,  680. 

upon  nonsuit,  680. 

upon  demurrer,  680. 

upon  verdict,  680. 

interlocutory,  680. 

final,  680. 

JUDICIAL  NOTICE,  668. 

JUDICIAL  OFFICERS, 

liability  and  privilege  of,  97,  615. 

JURISDICTION, 

of  crimes,  261,  262. 

defined,  615,  63C, 

concurrent  of  state  courts  and  United  States  courts,  63(1. 

of  United  States  Supreme  Court,  637. 

of  circuit  courts  of  appeals,  638. 

of  circuit  courts  of  United  States,  639. 

of  district  courts  of  United  States,  639. 


INDEX  487 

[References  are   to   Sections] 

JURISDICTION— Continued, 
of  court  of  claims,  641. 
of  state  courts,  645. 
in  equity,  646. 
objections  to,  how  and  when  made,  661. 

JURY,  664,  667,  677. 

empaneling,  708. 

conduct  in  criminal  eases,  714. 

verdict  of,  714. 

JURY  TRIAL, 

civil  suits  involving  over  twenty  dollars,  598. 
criminal  cases,  598. 

JUSTICE, 

See  Administration  of  Justice;  Courts  of  Justice. 

JUSTIFICATION, 

for  assault  and  battery,  59,  277. 

in  defamation,  93. 

competition  as  justification  for  Injuries  to  employer,  236. 

JUSTINIAN, 

definition  of  law,  1. 

K 

KIDNAPING,  270. 

KIN, 

next  of,  recovery  for  injuries  causing  death,  53. 

KIND, 

rents  payable  in,  331. 

KING, 

lord  paramount,  346,  347. 

KNIGHT  SERVICE,  350. 


L 


LAND, 

wrongs  to,  202-222. 
defined,  314. 

bounded  by  streams,  315. 
extent  of,  318. 
boundary  line  of,  318. 


488  INDEX 

[References  are  to   Sections] 

LAND — Continued. 

bounded  by  highways,  319. 

deeds  of  lands  held  adversely,  407. 

contract  for  sale  under  statute  of  frauds,  467. 

LARCENY,  285. 

LAW, 

See  Administrattve  Law;  Admiralty;  Courts  of  Law;  Crimi- 
nal Law;  International  Law;  Precedents. 
definition,  1,  2. 
confusion  in  definitions,  2. 
distinction  between  legal  and  moral  rights,  6. 
nature  and  sources,  1-36. 
purpose,  3. 

written  and  unwritten,  16,  18,  24-29. 
kinds  of,  in  United  States,  17. 
historical  and  legal  sources,  19. 
merchant,  origin  of,  21,  473. 
social  utility,  37-44. 
scientific  character,  42. 

science  of  law  distinguished  from  science  of  legislation,  42. 
protection  against  error  and  corruption,  43. 
defects,  44. 
classification,  45. 
of  torts,  45-420. 
misrepresentation  of,  118. 
of  place,  482. 
international,  625-628. 
judicial  notice  of,  668. 

LEADING  QUESTIONS,  674. 

LEGAL  DUTIES, 
in  general,  3. 

LEGAL  REMEDIES, 
classes,  15. 

LEGAL  RIGHTS, 
in  general,  3. 
scope,  7. 
protection  through  physical  powers  ot  the  state;  15. 

LEGAL  SOURCES, 

in  general,  1-36. 


INDEX  489 

^References  are  to  Sections] 

LEGALITY  OF  OBJECT, 

effect  on  validity  of  contract,  435. 

LEGATEE,  422. 

LEGISLATIVE  POWER, 

where  vested  in  United  States,  23. 

LEGISLATURE, 

power  to  bind  succeeding  legislature,  28. 
privilege  of,  96. 
liability  of,  613. 

LIBEL  AND  SLAND'^R 
in  general,  80. 
slander  defined,  81. 
slander  imputing  crime,  82. 
slander  imputing  disease,  83. 
slander  affecting  office,  etc.,  84. 

slander  actionable  by  reason  of  special  damages,  85. 
libel  defined,  86,  87. 
rights  of  newspapers,  88. 
publication  of  words,  89. 
construction  of  words,  90. 
certainty  in,  91. 
malice  in,  92. 
justification  in,  93. 
privilege  in,  94. 
absolute  privilege,  95. 
legislative  proceedings,  96. 
judicial  proceedings,  97. 
naval  and  military  matters    98. 
qualified  privilege,  99. 
matters  of  public  interest,  100. 
communications  under  duty,  101. 
communications  in  self-defense,  ""OZ- 
remedies,  103. 
damages,  104. 
criminal,  297. 

LIBEL  IN  ADMIRALTY,  654. 

LIBERTY, 

definition,  4. 


490  INDEX 

[References  are  to   Sections] 

LICENSE, 

to  enter  upon  land,  21C. 
not  an  easement,  328. 

LIEN, 

how  created,  332. 
statutory,  332. 
equitable,  332. 
by  contract,  332. 
common  law,  332. 

LIFE, 

right  to,  9,  50. 

when  may  be  taken,  51. 

civil  remedies  for  unlawful  taking,  52,  bi^ 

self-defense,  60. 

estates  for,  366. 

rights  of  life  tenant,  367. 

insurance  of,  488-495. 

LIMITATIONS, 

statute  of,  396,  397. 

LIMITED  PARTNERSHIP,  511. 

LORD, 

paramount,  346. 
middle,  347. 

LUNATICS, 

See  Insane. 
contracts  of,  442,  447. 


ikl 


MAINTENANCE,  279. 

MALICE, 

in  libel  and  slander,  y2. 
criminal,  296. 

MALICIOUS  PROSECUTION, 
elements  of,  71. 
motive,  72. 

want  of  probable  cause,  73. 
termination  of,  74. 
of  civil  actions,  75. 


INDEX  491 


[References  are   to   .SfecHons] 

MALICIOUS    PROSECUTION— Continued, 
abuse  of  process,  76. 
remedies  for,  77. 

MALICIOUS  TRESPASS,  298. 

MANDAMUS,  616,  617. 

MANDATORY  INJUNCTION,  647. 

MANSLAUGHTER, 
voluntary,  293. 
involuntary,  294. 

MARITAL  DUTIES, 

recovery  of  damages  for  interference,  232. 

MARRIAGE, 

right  of,  under  feudal  system,  335,  355. 

title  by,  399. 

agreements  for,  under  statute  of  frauds,  466. 

right  of,  554. 

fraud  between  engaged  parties,  555. 

defined,  556. 

Illegal,  557. 

ceremony  of,  558. 

foreign,  559. 

MARRIED  WOMEN, 
crimes  of,  255. 
contracts  of,  449. 
torts  of,  560. 
wrongs  to,  562,  564. 

MASTER  AND  SERVANT, 

damages  for  enticing  servant  away,  231. 

damages  for  seducing  servant,  231. 

in  general,  525. 

growth  of  relation,  533. 

apprentices,  534. 

who  is  master  or  servant,  535. 

independent  contractor,  536. 

contract  between  master  and  servant,  537. 

termination  of  relation,  538. 

discharge  by  master,  539. 

abandonment  by  servant,  540. 


492  INDEX 

[References  are  to   Sections] 

MASTER  AND  SERVANT— Continued. 

wrongs  growing  out  of  relation  independent  of  contract,  541. 

liability  of  third  persons  to  master,  542. 

liability  of  third  persons  to  servant,  543. 

liability  of  master  for  injury  to  others,  544. 

intentional  and  unintentional  injuries,   545. 

liability  of  servant  for  injuries  to  others,  546. 

master's  liability  to  servant,  547. 

duties  of  master  to  servant,  548. 

risks  assumed  by  servant,  549. 

fellow  servants,  550. 

vice  principal,  551. 

servant's  liability  to  master,  552. 

MAYHEM,  299. 

MEETING  OF  MINDS,  436. 

MEMORANDUM, 

under  statute  of  frauds,  469. 
signature  to,  470. 

MIDDLE   LORDS,   347. 

MILITARY  SERVICE, 
feudal  system,  338. 

MISPRISION  OF  TREASON,  304. 

MISREPRESENTATION, 

effect  on  contract,  437. 

MISTAKE, 

effect  on  contract,  436. 

MODERN  ESTATES,  358-394. 

MONTH,  373. 

MORAL  DUTIES, 

distinguished  from  legal  duties,  6. 

MORAL  RIGHTS, 

distinguished  from  legal  rights,  6. 

MORALS  AND  LAW,  6. 

MORTGAGES,  387. 


INDEX  493 


[references  are  to   Sections^ 

MOTION  FOR  NEW  TRIAL,  715. 

MURDER, 

defined.  292. 

N 

NATIONS, 

law  of,  625-628. 

NATURALIZATION, 

under  laws  of  the  United  States,  592, 
under  state  laws,  592. 
collective,  592. 

NATURE  AND  SOURCES  OF  LAW, 
in  general,  1-36. 

NAVIGABLE  STREAMS, 

as  boundaries,  315,  31o. 
jurisdiction  over,  653. 
torts  on,  653. 

NECESSARIES, 

what  are,  444. 

NEGLIGENCE,  153-183. 
actionable,  153. 
in  contract  or  tort,  154. 
elements  of,  155. 
definition,  156. 
inadvertence,  157. 
inevitable  accident,  158. 
ordinary  care,  159. 
no  degrees  in,  160. 
acts  or  omissions,  161. 
acts  of  irresponsible  persons,  162. 
intoxication,  163. 

of  persons  physically  infirm,  164. 
the  person  to  whom  duty  is  owing,  165. 
the  duty,  166. 
duty  implied  by  law,  167. 
damages,  168. 
cause  and  effect,  169. 
legal  connection  of,  cause  and  emict-  170- 
proximate  cause,  171. 
plaintiff's  own  conduct,  172. 


494  INDEX  , 

[References  are  to   SectionsJ 

NEGLIGENCE— Continued. 

plaintiff's  unlawful  act,  173. 

contributory  negligence,  174. 

tests  of  contributory  negligence,  175. 

plaintiff's  knowledge  of  danger,  176. 

danger  incurred  to  save  life  or  discharge  duty,  177. 

persons  of  defective  powers,  178. 

misleading  conduct,  179. 

imputable  negligence,  180. 

passenger  and  carrier,  imputed  negligence  of,  181. 

modern  rule  as  to  carriers,  181. 

children,  imputed  negligence,  182. 

presumptions  as  to  negligence,  183. 

criminal,  251. 

NEGOTIABLE  INSTRUMENTS,  471-487. 
definition  of  bill  of  exchange,  471. 
definition  of  promissory  note,  471 
uniform  law,  472. 

NEUTRALITY,  627. 

NEW  PROMISE, 

as  waiver  of  defense  of  statute  of  limitations,  450. 

NEWSPAPERS, 

libels  by,  88. 
liberty  of  press,  594. 

NEW  TRIAL, 

civil  cases,  678. 
criminal  cases,  715. 

NEXT  FRIEND  OF  INFANT,  581. 

NOTES, 

See  Promissory  Notes. 

NOTICE  OF  PROTEST,  477. 

NUISANCE, 

how  related  to  negligence,  132. 
defined,  133. 

coming  to  a  nuisance,  134. 
intent  or  motive  in.  135 
care  or  negligence  in,  1VJ6. 
what  may  be,  137. 


INDEX  495 


[References  are  to   Sections] 


NUISANCE— Continued, 
kinds  of,  138. 
public,  139. 
private,  140. 

mixed,  public  and  private,  141. 
authorized,  142. 
obstructing  highways,  143-150. 
special  injury,  150. 
remedies,  151. 
evidence  of,  152. 
to  real  property,  210. 
criminal,  300. 


NUNCUPATIVE  WILLS,  403. 


OBJECT, 

See  Legality  of  Object. 


O 


OBLIGATION  OF  CONTRACTS, 

constitutional  provisions,  603. 

OBSTRUCTION  OF  HIGHWAYS,  143-150. 

OCCUPANCY, 

title  by,  396. 

title  to  personal  property  by,  417. 

OCCUPYING  CLAIMANT, 
rights  of,  398. 

OFFENSES, 

criminal,  263-304. 

OFFER  AND  ACCEPTANCE, 
definition,  433. 
revocation  of  offer,  433. 

OFFICERS, 

military,  arrest  by,  65. 
peace,  arrest  by,  65. 
deeds  by,  411. 
performance  of  duties  of,  &12. 

OFFICES  AND  DIGNITIES,  329. 

OPINIONS, 

when  frauds,  119. 


^6  INDEX 

[References  are  to   Sections] 

ORDINANCES, 

statutory  law  of  city  governments,  23. 

OWNERSHIP, 

basis  of,  306. 
private,  307. 


PAPERS, 

when  privileged,  97. 

PARAVAILE, 

tenant,  347. 

PARENT  AND  CHILD, 

parent's  right  to  punish  child,  59. 
defense  of  person  in  loco  parentis,  60. 
parent's  right  to  restrain  child,  65. 

parent's  right  to  damages  when  daughter  seduced,  231. 
rules  of  descent,  400,  566. 

when  presumption  as  to  undue  influence  in  execution  of  con- 
tract will  arise,  438. 
emancipation,  443,  566. 
legitimate  and  illegitimate  children,  565. 
rights  and  duties  of  parent  and  child,  566. 
liability  for  necessaries  furnished  child,  566. 
wrongs  between  parent  and  child,  567. 
fraud  between  parent  and  child,  568. 
wrongs  by  third  persons,  569. 
child's  interest  in  parent,  570. 
parent's  interest  in  child,  571. 
physical  injuries  to  child,  572. 
enticing  away  child,  573. 
seduction  of  child,  574. 

PAROL  CONTRACT, 

defined,  428. 
evidence,  669. 

PARTICULAR  CONTRACTS, 
in  general,  496-502. 

PARTIES, 

to  contracts,  441-449. 
to  actions,  651. 


INDEX  497 

[References  are  to  Sections] 

PARTITION, 

proceedings  for,  691. 

PARTITION  FENCES,  328. 

PARTNERS, 

imputed  negligence,  180. 
promissory  notes  of,  483. 
frauds  of,  506. 
deeds  of,  507. 
as  agents,  526. 

PARTNERSHIP, 

promissory  note  of,  483. 

definition,  503. 

partners  agents  for  one  another,  503. 

silent  partner,  504. 

nominal  partner,  504. 

ostensible,  504. 

retiring  partner,  what  notice  necessary,  504. 

how  formed,  505. 

rights  and  powers  of  partners  before  dissolution,  505,  506. 

deeds  of  partners,  507. 

rights  and  powers  of  partners  after  dissolution,  508,  510. 

how  dissolved,  508. 

winding  up  of  business  of,  508. 

dissolution  by  death,  508. 

creditors  of,  509. 

creditors  of  individual  partner,  509. 

limited,  511. 

good  will,  512. 

distinguished  from  corporation,  514. 

PARTY  V/ALLS,  328. 

PASSENGER, 

modern  rule  as  to  negligence  of  carrier,  181. 

PATENT  RIGHTS,  187. 

PAYEE, 

defined,  475. 

PENAL  STATUTES, 

how  construed,  28. 

PERJURY,  301. 

32 — Elem.  Law. 


498  INDEX 

[References  are  to   Sections] 

PERSON, 

security  of,  8,  50. 

liberty  of,  10. 

right  to  security,  50-53. 

PERSONAL  PROPERTY, 
wrongs  to,  192-201. 
trespass  by  force,  193. 
possession,  194. 
the  force,  195. 
conversion,  196. 

conversion  by  persons  rightfully  in  possession,  197. 
demand  for  possession,  198. 
conversion  by  tenant  in  common,  199. 
taken  by  legal  process,  200. 
remedies  for  wrongs  to,  201. 
defined,  309,  416. 

may  be  acquired  by  descent,  417. 
title  to,  how  acquired,  417. 
occupancy,  417. 
accession,  417. 
confusion,  417. 
gift,  417. 
bill  of  sale,  417. 
succession,  417. 
bequest,  417. 
operation  of  law,  417. 

sales  by  executors,  administrators,  etc.,  417. 
judicial  and  execution  sales,  417. 
burial  rights,  418. 

PHILIPPINE  ISLANDS, 

when  cases  from  Supreme  Court  may  be  reviewed,  637. 

PHYSICIAN, 

frauds  of,  109. 
privilege  of,  671. 

PIRACY,  302. 

PLACE, 

law  of  place  of  payment  fixes  rights  of  parties  to  negotiable 

instrument,  482. 

PLEADINGS, 

when  privileged,  97. 


INDEX  499 

[References  are  to  Sections] 

PLEADINGS— Continued, 
mandamus,  616,  617. 
quo  warranto,  618,  619. 
prohibition,  620. 
habeas  corpus,  621. 
in  equity,  650. 
in  admiralty,  654. 
complaint,  bill  or  declaration,  657. 
confession  and  avoidance,  660. 
demurrers,  660. 

pleas  and  answers  to  jurisdiction,  660,  661. 
partition,  691. 

POLICE  POWER, 
defined,  600. 

POLICY  OF  INSURANCE,  488. 

POLYGAMY,  280. 

PORTO  RICO, 

when  judgment  of  Supreme  Court  may  be  reviewed,  637. 

POSTHUMOUS   CHILD, 

effect  of  birth  to  revoke  will,  404. 

POWER, 

defined,  5. 

POWER  OF  ATTORNEY, 
defined,  526. 

PRECEDENT, 

condition,  387. 

PRECEDENTS, 

as  source  of  law,  19,  34-36. 

limitation  of  necessities  of  individual  case,  29. 

defined,  34. 

declaratory  and  original,  35. 

importance  of,  36. 

PREMIUM, 

in  insurance  contract,  492. 
waiver  of  payment  of,  493. 

PRESS, 

freedom,  594. 


500  INDEX 

[References  are  to   Sections] 

PRESUMPTIONS, 

undue  influence  or  fraud  in  executing  contract,  438. 
judicial  notice,  668. 

PRIMER  SEIZIN,  353. 

PRINCIPAL  AND  ACCESSORY,  257. 

PRINCIPAL  AND  AGENT, 

See  Agent. 

crimes  of,  256. 

law  of,  525-532. 

creation  of  authority  of  agent,  526. 

liability  on  contract  made  by  agent  without  disclosing  name 

of  principal,  529. 
frauds  of,  530. 

PRIVATE  LAW, 

defined,  27,  585. 

PRIVATE  LETTERS,  190. 

PRIVATE  OWNERSHIP,  307,  308. 

PRIVILEGE, 

from  arrest,  who  may  claim,  69. 
in  libel  and  slander,  94,  95. 

PRIVILEGED  COMMUNICATIONS,   101,   109,   671. 

PRIZE  CASES, 

jurisdiction,  637. 

PRIZE  FIGHTING, 

as  misdemeanor,  272. 

PROCEDURE, 

constitutional  guaranties  concerning,  599. 

PROCESS, 

abuse  of,  76. 

issue,  658. 

how  served  and  returned,  659. 

PROHIBITION, 

writ  of,  620. 

PROMISES, 

when  frauds,  121. 

when  enforced  by  courts,  450. 


INDEX  501 


[References  are  to  Sections] 

PROMISSORY  NOTE, 

definition  of,  471. 
negotiability,  473. 
protest,  477. 
Indorsement,  478,  481. 
signature  to,  479. 
certainty,  480. 
surety,  481. 
guarantor,  481. 
assignor,  481. 
law  of  place,  482. 
of  agents,  483. 
of  partners,  483. 
capacity  of  parties,  484. 
consideration  of,  485. 
innocent  purchaser,  486. 

PROOF, 

kinds  of  evidence,  666. 

PROPERTY, 

See  Incorporeal  Property;    Personal  Property;    Real  Prop- 
erty. 
right  to  protect,  60. 

wrongs  to  incorporeal  property,  184-191. 
wrongs  to  personal  property,  192-201. 
wrongs  to  real  property,  202-222. 
In  general,  305-309. 
basis  of  ownership,  306. 
origin  of  private  ownership,  307. 
importance  of  ownership,  308. 
kinds  of,  309. 
real,  309. 
personal,  309. 
corporeal,  309. 
incorporeal,  309. 

PROSECUTION, 

See  Malicious  Prosecution. 

PROTEST  OF  NEGOTIABLE  INSTRUMENTS, 
notice  of,  477. 

PUBLIC  DUTIES, 

of  private  persons  or  corporations,  524. 
of  officers,  612-615. 


502  INDEX 

[References  are   to   Sections] 

PUBLIC  LAW, 
defined,  27. 
in  general,  585-628. 

PUBLICATION, 

notice  by,  373. 

PUBLICATION  IN  LIBEL  AND  SLANDER,  89. 

"PUFFING," 

not  warranty,  497. 

PUNISHMENT  OF  CRIMES,  242,  260. 

PUNITIVE  DAMAGES, 
when  awarded,  15. 

PUNITIVE  PROCEEDINGS, 

criminal  prosecutions,  15. 

PURCHASE, 

title  by,  405. 

PURCHASER, 

innocent,  486. 

PURPRESTURE, 
defined,  145. 

Q 

QUITCLAIM  DEED,  405. 
QUASI  CONTRACTS,  430. 
QUASI  CORPORATION,  513. 
QUO  WARRANTO,  618,  619. 

R 

RAPE,  268. 

RATIFICATION, 

of  contract  by  Infant,  443-445. 

of  contract  procured  by  fraud,  446. 

of  contract  made  by  intoxicated  person,  448 

of  agent's  acts,  528. 

REAL  PROPERTY, 

owner,  rights  of,  202. 
dispossession,  203. 


INDEX  503 


[References  are  to  Sections] 

REAL  PROPERTY— Continued, 
unlawful  detention,  204. 
remedies  for  injuries  to,  205,  206. 
remedies  for  wrongs  to,  205,  209,  211. 
injuries,  206. 
waste,  207-209. 
remedies  for  waste,  209. 
nuisances  affecting  land,  210,  211. 
remedies  for,  211. 
trespass  upon,  212-214. 
boundaries  of,  213,  318. 
who  may  be  trespasser,  214. 
license  to  enter  upon,  215-222. 
Implied  license,  216. 
express  license,  217. 

effect  of  statute  of  frauds  on  license,  218. 
license  by  law,  219. 
legal  process,  220. 
condemnation  proceedings,  221. 
effect  of  exceeding  license,  222. 
defined,  309,  314. 

title  to  in  United  States,  310-313. 
Indian  titles,  313. 
boundaries  by  streams,  315. 
Islands,  315,  316. 
fixtures,  317. 

highway  as  boundary,  319. 
appurtenances,  320. 
estates  in,  362-394, 
fee  simple,  363. 
fee  simple  in  abeyance,  364. 
use  of  word  heirs,  365,  389. 
life  estate,  366. 
rights  of  life  tenant,  367-370. 
emblements,  368,  371. 
estates  for  years.  371. 
rents,  372,  375. 
term  of  tenancy,  '6T6. 
distress,  374. 
estate  at  will,  376. 
estate  at  sufferance,  377. 
base  fee.  378. 
conditional  fee,  37£. 


504  INDEX 

[References  are  to   Sections\ 

REAL  PROPERTY— Continued. 

estate  tail,  380. 

curtesy,  381. 

dower,  382,  383,  410. 

estates  upon  condition,  384-387. 

remainders,  388. 

rule  in  Shelley's  Case,  389. 

executory  devises,  390. 

reversions,  391. 

estates  in  severalty,  392. 

joint  tenancy,  393. 

estate  by  entirety,  393. 

estates  in  common,  394. 

title,  how  acquired,  395-415. 

occupancy,  396. 

adverse  possession,  397. 

occupying  claimants,  398. 

title  by  marriage,  399. 

descent,  400. 

devise  and  wills,  401-404. 

purchase,  405. 

title  bond,  405,  406. 

warranty,  covenants  of,  405. 

deeds  of  conveyance,  405,  407-412. 

deeds  of  land  held  adversely,  407. 

forms  of  deeds,  408. 

recording  deeds,  409. 

execution  of  deeds,  410. 

deeds  by  officers,  411. 

description  of  in  deed,  412. 

eminent  domain,  413. 

escheat,  414. 

forfeiture,  415. 

administrator  and  executor — rights  in  real  estate,  421,  422. 

contract  for  sale  under  statute  oi  frauds.  467. 

deeds  of  partners,  507. 

deeds  of  corporations,  522. 

power  of  attorney,  532. 

deeds  of  guardians,  579. 

RECOGNIZANCE,   432. 

RECORD, 

contracts  of,  432. 


INDEX  505 

[References  are  to   Sections] 


RECOVERIES, 

common,  380. 


REGISTRATION  OF  DEEDS,  409. 

RELATIONS, 

See  Business  Relations;   Confidential  Relations;   Domestic 

Relations. 

RELEASE, 

part  payment  as  consideration  for,  452. 
mutual  by  creditors,  453. 
of  disputed  claims,  454. 

RELIEFS,  339,  352. 

RELIGIOUS  LIBERTY, 

constitutional  provisions,  597. 

REMAINDER, 

estate  in,  388. 

vested  and  contingent,  388. 

REMEDIAL  STATUTES, 
how  construed,  28. 

REMEDIES,  ♦ 

See  Legal  Remedies;  Torts. 
torts,  47. 

assault  and  battery,  54. 
"wrongful  arrest,  68. 
arrest  of  privileged  persons,  70. 
malicious  prosecution,  77. 
libel  and  slander,  103. 
fraud,  130. 
nuisance,  151. 

wrongs  to  personal  property,  201. 
damage  to  land,  211. 
damage  by  trespassing  animals,  227. 

unlawful  interference  with  business  or  domestic  relations,  240. 
breach  of  contract,  460. 
relief  against  administrative  action,  611. 

RENTS, 

defined,  331,  372. 

when  due,  372. 

forfeiture  for  nonpayment,  372. 


506  INDEX 

[References  are  to   Sections] 

RENTS— Continued. 

effect  of  destruction  of  premises,  372. 
how  payable,  373. 
distress  for,  374. 
apportionment  of,  375. 

REPEAL, 

by  implication,  28. 

of  repealing  statute,  effect  of,  28.  •» 

corporate  charter,  effects  on  rights  of  stockholders.  521. 

REPRESENTATION, 

fraudulent,  116-128. 

false  by  infant,  446. 

distinguished  from  warranty,  116,  491. 

in  insurance  contracts,  491. 

REPUTATION, 

right  to,  13,  79. 

RETROACTIVE   STATUTES, 
right  to  enact,  26. 
defamation,  79-103. 

REVERSION, 

estates  in,  391. 

REVOCATION, 

of  license  to  enter  on  land,  217. 

of  dedication  of  highway,  325. 

of  will,  404. 

offer,  433. 

of  agency,  531. 

RIGHT  OF  MARRIAGE, 

under  feudal  system,  835,  355. 

RIGHT  OF  WARDSHIP, 

under  feudal  system,  335,  354. 

RIGHT  OF  WAY, 

by  prescription,  325. 

by  dedication,  325. 

by  statutory  proceedings,  325. 

private,  326. 

implied,  326. 


INDEX  507 

[References  are   to   Sections] 

RIGHT  OF  WAY— Continued, 
by  grant,  326. 
temporary,  327. 

RIGHTS, 

See   Fundamental   Rights;    Legai.   Rights;    Moral  Rights. 

moral  and  legal,  3,  6. 

of  personal  security,  8,  50-61. 

to  life,  9,  50. 

of  personal  liberty,  10,  62-69. 

to  health,  12. 

to  reputation,  13,  79. 

to  property,  14. 

to  employ  labor  and  to  do  business,  238,  239. 

to  marry,  554. 

fundamental  constitutional,  591-602. 

of  suffrage,  593. 

to  freedom  of  speech  and  press,  594. 

to  assemble,  595. 

to  bear  arms,  596. 

to  religious  liberty,  597. 

against  unlawful  searches,  598. 

to  make  contracts,  603. 

to  performance  of  official  duties,  612-615. 

RIOT,  303. 

RISK  IN  INSURANCE  CONTRACTS,  495. 

ROBBERY,  283. 

t 
RULE  IN  SHELLEY'S  CASE,  389. 

S 

SALES  OF  PERSONAL  PROPERTY, 
title  by,  417. 

memorandum  under  statute  of  frauds,  469,  470,  499. 
essentials  of,  496. 
existence  of  thing  sold,  497. 
rescission  of,  for  fraud,  497. 
warranty  in,  497. 
general  warranties,  497. 

implied  warranty  in  sale  by  description,  4yY. 
title  where  goods  to  be  delivered  in  future,  497. 


508  INDEX 

[References  are  to   Sections] 

SALES  OF  PERSONAL  PROPERTY— Continued, 
stoppage  in  transitu,  right  of,  498. 
transfer  of  title,  498. 
sales  within  statute  of  frauds,  499. 
how  affected  by  statute  of  frauds,  499. 
delivery  and  payment,  500. 
fraudulent  sales,  500. 
when  seller  retains  possession,  500. 

• 

SALES  OF  LANDS, 

judicial  and  execution  sales,  411. 

by  executors  and  administrators,  421,  422. 

effect  of  statute  of  frauds  on,  467. 

note  or  memorandum  under,  469. 

in  partition  proceedings,  691. 

SATISFACTION, 

when  good,  690. 

SEARCH, 

constitutional     provision     protecting     against     unwarranted 
searches,  598. 

SECURITY, 

of  the  person,  50-53. 

SEDUCTION, 

parent's  right  to  damages,  231,  574. 
defined,  269. 

SEIZURE,  • 

constitutional  provision  against  unwarranted  seizure,  598. 

SELF-DEFENSE, 

in  assault  and  battery,  60. 
defined,  254. 

SENATE  AS  A  COURT,  632. 

SERVAN1, 

See  Master  and  Servant. 

SEVERALTY, 

estates  in,  392. 

SHELLEY'S  CASE, 
rule  in,  389. 


iNDi:x  509 

[References  are  to   Sections] 


SHERIFF,  656. 

SHIP'S   HUSBAND,   527. 

SHIP'S  MASTER,  527. 

SIGNATURE, 

under  statute  of  frauds,  470. 

SILENCE, 

as  fraud,  113. 

SLANDER, 

See  Defamation,  Libel  and  Slandeb. 
distinguished  from  libel,  80. 
liability  of  author  for  publication,  89. 

SOCAGE, 

free,  349. 

SOCIAL  UTILITY, 
of  law,  37-44. 

SODOMY,  271. 

SOURCES  OF  LAW, 

See  Historical  Soubces;  Legal  Sources. 

SOVEREIGNS, 

crimes  of,  626. 

SPECIAL  PROCEEDINGS,  616-624.  683-691. 

SPECIFIC  ENFORCEMENT, 

application  of  remedy,  15. 

STATE, 

law  of,  defined,  2. 

prosecution  for  criminal  acts,  241. 

contracts  of,  442. 

STATEMENT, 

opening,  709. 

STATUS  AND  CONTRACT,  424. 

STATUTES, 

as  legal  sources,  19,  23-29. 

of  United  States  and  states,  25. 

when  in  force,  25. 


510  INDEX 

[References  are  to   Sections^ 

STATUTES— Continued, 
validity  of,  25. 

must  not  violate  constitution,  25. 
retroactive,  26. 
prospective,  26. 
ex  post  facto,  26. 
remedial,  26. 
public,  27. 
private,  27. 
interpretation  of,  28. 
penal,  28. 

technical  words  in,  28. 
implied  repeal,  28. 
irrepealable  statute,  558. 
in  derogation  of  common  law,  28. 
judicial  legislation,  28. 
repugnant,  28. 
effect  of  repeal  of  repealing  statute,  28. 

STATUTE  OF  FRAUDS, 
origin  of,  461. 
provisions  of,  462. 

promises  of  executors  and  administrators,  463. 
debt,  default  and  miscarriage,  464. 
liability  must  be  collateral,  465. 
agreements  in  consideration  of  marriage,  466. 
contract  for  sale  of  lands,  467. 

agreements  not  to  be  performed  within  one  year,  468. 
note  or  memorandum,  469. 
signature  to  memorandum,  470. 
sale  of  goods,  499. 

STATUTE  OF  LIMITATIONS,  396,  397. 

STOCKHOLDERS, 

corporation  rights,  519. 

STOPPAGE  IN  TRANSITU,  498. 

STREAMS, 

See  Navigable  Streams. 
land  bounded  by,  315. 
pollution  of,  315. 
use  of,  315. 


INDEX 


51i 


\References  are  to   Sectionsi 

STRICT  CONSTRUCTION, 

statutes,  28. 

STRIKES,  239. 

SUBINFEUDATION,  342. 

SUBPCENA,  670. 

SUBPOENA  DUCES  TECUM,  670. 

SUBSEQUENT  CONDITION,  387. 

SUCCESSION  TO  PERSONAL  PROPERTY, 
title  by,  417. 

SUFFERANCE, 

estates  at,  377. 

SUFFRAGE, 

provisions  of  fifteenth  amendment,  593. 

state  to  fix  qualifications  for  congressmen  ana  electors,  593. 

SUNDAY,  373. 

SUPREME  COURT  OF  THE  UNITED  STATES, 
powers,  587. 
jurisdiction  of,  637. 

SURETY, 

defined,  481. 


TAIL, 

estates  in,  380. 

TENANT, 

by  curtesy,  381, 

TENEMENT, 

defined,  314,  345. 

TENURES,  344-394. 

ancient,  344-357. 

in  United  States,  how  affected  by  feudal  system,  358,  359. 

TERRITORIAL  COURTS,  643. 

TERRITORIES, 

constitutional  provisions  concerning  control,  605. 


512 


INDEX 


[References  are  to   /Sections] 
TESTATE  AND   INTESTATE,   41^. 

TIME, 

how  computed,  373. 

TITHES,  323. 

TITLE, 

sources  of  in  United  States,  311,  360,  361. 

by  treaty,  312. 

derived  from  Indians,  313. 

in  real  estate,  how  acquired,  395-415. 

by  occupancy,  396. 

by  adverse  possession,  397. 

of  occupying  claimant,  398. 

by  marriage,  399. 

by  descent,  400. 

by  devise,  401. 

by  purchase,  405. 

hy  eminent  domain,  413. 

by  escheat,  414. 

by  forfeiture,  415. 

by  partition,  691. 

TITLE  TO  PERSONAL  PROPERTY, 
how  acquired,  417. 
by  occupancy,  417. 
by  increase,  417. 
by  confusion,  417. 
by  gift,  417. 
by  sale,  417. 

by  succession  or  descent,  417. 
by  bequest,  417. 
by  judicial  decree,  417. 
when  it  passes  under  contract  of  sale,  498. 

TITLE  BOND,  405,  406. 

TORTS, 

law  of,  45-240. 

defined,  46-48. 

distinguished  from  crimes,  47. 

distinguished  from  breaches  of  contract,  48. 

theory  of  the  law,  49. 

intentional  injury  to  business  relation,  235. 


INDEX  513 

[References  are  to  Sections] 
TRADE-MARKS  AND  TRADE-NAMES,  191. 

TREASON  AND  MISPRISION  OF  TREASON,  304. 

TREATIES, 

lands  acquired  by,  312. 

constitutional  provisions  concerning  treaty-making  power,  60S. 

by  law,  626. 

jurisdiction  of  cases  involving,  637. 

TRESPASS, 

on  land,  212. 
malicious,  298. 

TRIAL, 

See  JuEY  Triai,. 

in  equity,  651. 

in  admiralty,  654. 

in  civil  cases,  665. 

in  criminal  cases,  701. 

TRUSTEES, 

frauds  of,  108. 

TRUTH, 

in  libel  and  slander,  93. 


ULTRA  VIRES, 

acts  of  corporations,  517. 

UNDERWRITER,  488. 

UNDUE  INFLUENCE, 

effect  on  contract,  438. 

UNITED  STATES, 

kinds  and  sources  of  law,  16-22. 

UNITED  STATES  COMMISSIONERS,  642. 

UNITED  STATES  COURTS. 
See  CoTJBTS. 

UNWRITTEN  LAWS,  18. 

USAGE, 

different  from  custom,  33. 
33 — Elem.  Law. 


514  INDEX 

[References  are  to   Sections] 

UTILITY, 

social  utility  of  law,  37-44. 


VENDOR'S  LIEN,  332. 

VENUE, 

change  of,  703. 

VERDICT, 

in  civil  cases,  677,  678. 
criminal  cases,  714. 

VESTED  REMAINDER,  388. 

VICE  PRINCIPAL, 
defined,  551. 

VILLENAGE,  349. 

VOID  AND  VOIDABLE  CONTRACTS,  489. 

w 

WARDSHIP,  335,  354. 

WARRANT  FOR  ARREST, 
arrest  without,  695. 
nature,  693. 
when  void  or  valid,  694. 

WARRANTY, 

See  Express  Warranty;   Implied  Wabbanty. 

defined,  116. 

distinguished  from  representation,  116,  491. 

in  insurance  contracts,  491. 

of  thing  sold,  497. 

of  title,  497. 

of  quality,  497. 

apparent  defects  not  covered  by,  497. 

WARRANTY  DEED,  405. 

WASTE,  207,  370. 

WATER, 

right  to  use,  328. 


INDEX  515 

[References  are  to   Sections] 


WAY, 

right  of,  325. 

WEEK,  373. 

WILL, 

estates  at,  376. 

WILLS, 

antiquity  and  origin  of,  402. 

modern,  creature  of  Roman  law,  402. 

who  may  make,  403. 

codicils  to,  403. 

nuncupative,  403. 

how  made  and  attested,  403. 

how  revoked,  404. 

of  land,  how  executed,  404. 

how  set  aside,  404. 

foreign  wills,  404. 

WITNESSES, 

privilege  from  arrest,  69. 
in  equity  cases,  651. 
in  admiralty  cases,  654. 
in  civil  cases,  670-674. 
privileged  communications,  671. 
in  criminal  cases,  710. 

WRIT  OF  CERTIORARI,  624. 

WRIT  OF  ERROR,  681. 

WRITTEN  CONTRACTS,  427. 

WRITTEN  LAWS,  24-28. 

WRONGS, 

See  TOBTS. 


YEAR, 

how  computed,  373. 

agreement  not  to  be  performed  within,  468, 

YEARS, 

estates  for,  371. 


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